CONTENTS
Thursday 17 October 1996
Aggregate and Petroleum Resources Statute Law Amendment Act, 1996, Bill 52, Mr Hodgson / Loi de 1996 modifiant des lois en ce qui concerne les ressources en agrégats et les richesses pétrolières, projet de loi 52, M. Hodgson
STANDING COMMITTEE ON GENERAL GOVERNMENT
Chair / Président: Mr Jack Carroll (Chatham-Kent PC)
Vice-Chair / Vice-Président: Mr Bart Maves (Niagara Falls PC)
*Mr JackCarroll (Chatham-Kent PC)
*Mr HarryDanford (Hastings-Peterborough PC)
Mr JimFlaherty (Durham Centre / -Centre PC)
Mr BernardGrandmaître (Ottawa East / -Est L)
Mr ErnieHardeman (Oxford PC)
Mr RosarioMarchese (Fort York ND)
*Mr BartMaves (Niagara Falls PC)
*Mrs SandraPupatello (Windsor-Sandwich L)
*Mrs LillianRoss (Hamilton West / -Ouest PC)
Mr MarioSergio (Yorkview L)
*Mr R. GaryStewart (Peterborough PC)
Mr Joseph N. Tascona (Simcoe Centre / -Centre PC)
Mr LenWood (Cochrane North / -Nord ND)
*Mr Terence H. Young (Halton Centre / -Centre PC)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr Michael A. Brown (Algoma-Manitoulin L) for Mr Grandmaître
Mr TomFroese (St Catharines-Brock PC) for Mr Carroll
Mr FrankKlees (York-Mackenzie PC) for Mr Hardeman
Ms ShelleyMartel (Sudbury East / -Est ND) for Mr Marchese
Mr Peter L. Preston (Brant-Haldimand PC) for Mr Stewart
Also taking part /Autres participants et participantes:
Hon ChrisHodgson, Minister of Natural Resources
Mr RayPichette, manager, program development, non-renewable resources,
Ministry of Natural Resources
Ms KrystineLinttell, solicitor, legal services branch,
Ministry of Natural Resources
Clerk / Greffière: Ms Lynn Mellor
Staff / Personnel: Mr Doug Beecroft, legislative counsel
The committee met at 1003 in committee room 1.
AGGREGATE AND PETROLEUM RESOURCES STATUTE LAW AMENDMENT ACT, 1996 / LOI DE 1996 MODIFIANT DES LOIS EN CE QUI CONCERNE LES RESSOURCES EN AGRÉGATS ET LES RICHESSES PÉTROLIÈRES
Consideration of Bill 52, An Act to promote resource development, conservation and environmental protection through the streamlining of regulatory processes and the enhancement of compliance measures in the Aggregate and Petroleum Industries / Projet de loi 52, Loi visant à promouvoir la mise en valeur des ressources, la conservation ainsi que la protection de l'environnement en simplifiant les processus de réglementation et en renforçant les mesures de conformité dans l'industrie pétrolière et l'industrie des agrégats.
The Chair (Mr Jack Carroll): Good morning. Welcome to the beginning of clause-by-clause discussion of Bill 52. We have, as agreed, the Minister of Natural Resources, Mr Hodgson, with us this morning for a 15-minute presentation. That's what we asked for and that's what he committed to. Minister, the floor is yours.
Hon Chris Hodgson (Minister of Natural Resources, Northern Development and Mines): I'd like to thank the committee members for their time in working on this bill. With the recent changes to the remuneration, I felt I should extend our appreciation to all parties for their time on this.
I'm pleased to have the opportunity to appear before this committee to comment on Bill 52. This bill, once passed, will amend four existing statutes: the Aggregate Resources Act, the Petroleum Resources Act, the Mining Act and the Ontario Energy Board Act.
I know that you've listened to a number of briefs, and our staff have spent time before this committee, but I think it's important that I outline a few of the things I think are important.
The bill will improve the way the government regulates the aggregate, petroleum and brine industries in the province. The amendments proposed in the bill will eliminate red tape, introduce efficiencies, remove barriers to private sector job creation and streamline delivery. It will also help the ministry to maintain the province's leadership in regulating the industries and improve our enforcement capability to ensure regulatory compliance. Both the environment and the economy will benefit from this initiative, and this is very much our objective in the design of this bill.
This proposed legislation is consistent with our decision to clearly define ministry and industry roles. The ministry will concentrate on its core business of developing policy and standards, enforcing those standards and providing technical approvals for permits and licences. Industry will be more accountable for its actions and day-to-day operations. Industry will become more aware of provincial environmental standards and clearly be penalized for failure to meet these standards.
The current legislation can be too complex and ambiguous, with often too much process. There are many administrative and financial functions that ministry inspectors must now perform which are either not necessary or better performed by another party. This bill will address these issues and allow inspectors to focus on the ministry's core business of enforcement and compliance with ministry standards.
The bill proposes a compliance partnership. Through it, industries will have a role in monitoring their day-to-day activities and reporting annually to the ministry. As a result, it will strengthen compliance. The bill does not provide a framework for industries to be self-regulating and self-policing, as some have suggested.
The introduction of the compliance report has many benefits. Operators will be aware of the rules and must measure their performance against the rules. This compliance report will be open to the public and will increase accountability to encourage operators to do the right thing.
MNR will retain responsibility for ensuring delivery, particularly with regard to inspections. Under this legislation, the duties and powers of an inspector remain unchanged. We will continue to do inspections and audits of sites. Ensuring compliance is a major priority in this program area.
Bill 52 proposes important changes to each of the affected industries. I would like to begin by outlining some of the changes to the aggregates program. I will then turn my attention to the petroleum and brine industries.
The operational standards being developed for the aggregates industry will provide detailed, upfront, technical guidelines and criteria in simple-to-read language which will be clearer than the current act and regulations. MNR intends to develop the first draft and to seek comments from industry and other key stakeholders prior to finalizing the regulations. In addition, we will formally post the proposed regulations on the Environmental Bill of Rights registry, allowing us to reach a much broader audience.
As part of this effort to provide greater clarity and detail, changes will also be made to the aggregate licence application process. Potential applicants will be given a set of stringent standards right at the start to guide them through the application process. MNR will be responsible for reviewing the application to ensure that all standards have been met. It will be the applicant's responsibility to resolve all issues and objections that are raised. As a result, the public, municipalities and other stakeholders will have the ability to convey concerns and objections under this new application process directly to the applicant.
There will still be cases where the applicant is unable to resolve concerns, so the Minister of Natural Resources may refer matters to the Ontario Municipal Board. The board will have new decision-making authority under this bill rather than being limited to making recommendations to the minister, as is now the case. This will give additional credibility and respect to the process. Parties to the hearings will clearly have to work together to resolve any objections.
The Aggregate Resources Act presently provides for three types of aggregate permits: commercial, public authority and personal permits. Bill 52 will simplify and reduce regulatory confusion by consolidating them into a single aggregate permit.
There is also provision for multisite permits and exemption to permits. These were introduced primarily for the forestry sector and will facilitate the extraction of aggregate for the construction and maintenance of forest access roads. With the Crown Forest Sustainability Act, many efficiencies can be used to help remove red tape and duplication in the area of aggregate extraction for forest access roads. In the end, however, the forest industry will still have to comply with the operational standards, and compliance reporting will be subject to auditing and enforcement by MNR inspectors.
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The aggregate resources trust is an innovative way of dealing with a function that must continue but that need not be delivered by the province. A public trustee will look after all financial transactions involving the funds. The trust will collect and disburse annual licence fees, administer the abandoned pits and quarries rehabilitation fund, and administer a new pooled trust fund to provide for rehabilitation where aggregate permits and licences have been revoked or operators have gone into bankruptcy.
The Aggregate Producers' Association of Ontario will be responsible for the delivery of the rehabilitation program associated with the abandoned pits and quarries rehabilitation fund. It makes sense; it is part of their business. It gives them responsibility both physically and financially for rehabilitating these sites. For your information, MNR currently has an agreement in place with the association for the delivery of the program for the fiscal year 1996-97.
Let me now turn to the petroleum and brine industries. As with the provisions related to aggregates, Bill 52 will change operational standards for petroleum and brine and base them on detailed technical guidelines. These will be similar to the current Canadian Standards Association standard for hydrocarbon storage.
MNR will continue to conduct field inspections of wells and other facilities, with strengthened powers. For example, inspectors will have the authority to order plugging of wells. On a related note, the ministry has introduced the concept of industry-based examiners who will be certified by the MNR. I would point out that these new industry-based examiners will complement, not replace, our current ability to ensure compliance with standards. The number of examiners will be determined by the marketplace.
The bill also introduces additional deterrence factors. There will be a significant increase in the possible fines, with a new maximum of $500,000 replacing the current maximum of $10,000. The time period for initiating prosecutions will be extended to five years. The ministry also anticipates increased vigilance on the part of the public, industry and other stakeholders in reporting suspected illegal operations.
Bill 52 will lead to the implementation of a new life-cycle well licence to replace the current well permit system, which only addresses the regulatory functions associated with drilling and many other activities. The new system requires adherence to operational standards for the entire life of the well, right from the initial well drilling to the final plugging and abandonment.
The life-cycle well licence will cover all activities, including drilling, production, maintenance and changes in the status or purpose of the well. In addition, it eliminates other licences and approvals, such as annual production and rig licences, as well as special brine well permits under the Mining Act.
The oil, gas and salt resources trust is very similar in concept to the aggregate resources trust. This trust will support the geological core and chip library managed by the ministry and thereby ensure the continued provision of this information and research service to the industry and academic institutions. It will also fund progressive applied research in the fields of oil, natural gas, salt solution mining and hydrocarbon storage. The fund will be administered by a board of directors and should raise about $150,000 to $200,000 annually, according to ministry estimates.
The bill improves the regulations regarding compulsory pooling and unitization. Compulsory pooling and unitization in the petroleum and gas industry is currently regulated by the Ontario Energy Board. However, the board deals primarily with utilities, and hearings before the board can be very costly. Bill 52 transfers this regulatory role to the Mining and Lands Commissioner, an official who is responsible to the Minister of Natural Resources and who deals with many resource decisions.
I would like to speak about implementation. There is no question that the passage of this bill will allow the ministry to introduce many efficiencies in delivering programs. The efficiencies introduced will allow the ministry to properly deliver its non-renewable resources program in a downsizing environment. The focus on its core business -- standards development, technical approvals and, most importantly, enforcement -- provides us with this opportunity.
I would also like address the issue of regulations. There's been much criticism of the fact that the ministry has not released the draft regulations. There is no intent here to weaken our current legislation or regulations. I believe the opposite will be true: The standards will be tougher in our new program. Staff have been making every effort to develop the first draft so that meaningful consultation can occur. The first draft is scheduled to be completed some time late in November and will be circulated to stakeholders and interest groups for comments. I will also circulate it to opposite parties, and as I mentioned, we'll post it on the EBR.
In closing, the government will be introducing a number of motions to amend the bill currently before this committee. I believe you have already received copies of our motions. Though they are very much of a housekeeping nature, there are some that we feel address the concerns that have been raised in the presentations before this committee and in written submissions.
I believe that Bill 52 is an innovative approach that introduces efficiencies and allows for effective delivery of these programs. As mentioned earlier, the approach we are taking addresses both the economic and environmental perspectives. A true balance, I believe, Mr Chair and committee members, has been found with this bill. I would like to thank you for allowing me to appear here today and for your time in studying this.
The Chair: Thank you, Minister. We appreciate your attendance here this morning.
Ms Shelley Martel (Sudbury East): Mr Chair, I wonder if I might ask the minister if he would have some time for questions.
The Chair: Basically, the agreement we made was that he would be here about 15 minutes for presentation; he's left another meeting to be here, so he's not obligated to stay beyond that time.
Hon Mr Hodgson: What's the question, Shelley?
Ms Martel: Actually, I had a couple. I'll try and work through them quickly. I noticed that you said you're going to post the reg changes on the environmental registry and I was curious as to why the bill itself hadn't been posted on the registry, because I know you came in for some criticism from the Environmental Commissioner with respect to that very issue. Is there a reason the ministry didn't post it in the first place?
Hon Mr Hodgson: I'll let Ray answer that. Legally, we don't have to.
Mr Ray Pichette: If I may, initially, of course, we were under the regulatory exemption with regard to posting, but it is of course a discretionary matter of the minister and it was felt that with the consultation that's going through with this committee we were still meeting the objectives of the Environmental Bill of Rights. There will be a notice of exception filed at some point, probably in November or December.
Ms Martel: Can I ask one other question about the inspectors, because this has been a point that I've raised a couple of times. Your parliamentary assistant was good enough to get back to us with the staffing implications with respect to the inspectors for 1996-97 and his information indicated that we were moving from 41 to 32. Why I'm asking this again is because we all received a two-page letter from the MNR inspectors themselves and their numbers were quite a bit different. They said, and I'm just quoting from their letter, "With the proposed number of inspectors reduced to 16 for private land designated areas, each inspector will have limited time available for carrying out enforcement duties and auditing." I'm wondering if I'm reading this wrong, if the numbers are correct, why there is a discrepancy or does it have something to do with a distinction between private and public land?
Hon Mr Hodgson: Just in general, their function is going to be changed slightly. They're no longer going to be doing the banker's role or a lot of the administrative functions that can be done by others. The industry in particular is going to be managing this or the trust. They'll have more time to do what they're supposed to be doing in what the core business of the ministry is.
On the actual numbers debate, I can let Ray talk to you about that. But I believe Frank, my parliamentary assistant, handed you a graph that outlines it.
Ms Martel: Yes, he did.
Hon Mr Hodgson: I've read the Hansard from the last time Ray was here. Do you want to follow up on that?
Mr Pichette: Are you suggesting there are only 16 aggregate resource officers this year?
Ms Martel: No. I was referencing a September 13, 1996, document that was given to this committee on behalf of the aggregate officers' association of Ontario, who I assume are the MNR staff that are involved in inspections. Under the section, "Annual Compliance Report," their quote is the following: "With the proposed number of inspectors reduced to 16." Now I'm assuming that's what the end number is. In the document that was given to us by the parliamentary assistant, we only had the numbers for this year, not next year, and I know there's a second year of MNR cuts coming and I'm wondering what number is actually the one that we should be considering will be the end number of inspectors in the province when the two years of cuts are through.
Hon Mr Hodgson: We'll have to wait and see to a certain extent to see what works out in the field when we bring this in.
Mr Pichette: The estimates process is just beginning and we have to fully cost Bill 52 before that decision can be made. At this point in time, again, we're giving you known facts. There are 32 aggregate resources officers. Now, I might qualify that, strictly the private land side. It's strictly the private land. The aggregate resources officer only deals with the private land. That association is only those officers who deal with private land.
Ms Martel: So you're not clear where they're getting the number 16 from, then?
Mr Pichette: No. Again, those numbers haven't been ascertained at this point in time.
Hon Mr Hodgson: I have a question, Mr Chair, if I could ask your indulgence for a minute. There was a presentation from some aggregate producers up in northern Ontario around Sudbury that asked for the designation of the area around Sudbury to be expanded. I know that's an area that's near and dear to Shelley's heart; it's your riding. Do you have an opinion on that, if we expanded the designation?
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Ms Martel: I'm going to move an amendment today on behalf of the producers that would designate the rest of Ontario at a minimum. If that can't be done, then request that the ministry look particularly at the situation in Sault Ste Marie and Sudbury where you see the greatest contrast between those who operate under designation and specific rules and those who don't.
Hon Mr Hodgson: So will your amendment have a specific geographical area around Sudbury?
Ms Martel: It is a general amendment that calls for a blanket designation of the province, at this point. If the ministry's interested, we could probably work through an amendment that narrows it down, if that's what you want to do to accomplish that.
Hon Mr Hodgson: Yes, I'd be willing to look at that. In the interest of fairness, Mr Chair, if I could ask your indulgence, my colleague, Mr Brown, probably wants to ask something. Probably not. It's up to you, Mike.
Mr Michael A. Brown (Algoma-Manitoulin): I really don't have any specific questions of the minister; I will of the parliamentary assistant and staff as we go through the bill.
I still am absolutely at a loss to understand why we're proceeding with this bill without the regulations. It's like hanging on to Jell-O. It is very difficult to know what this bill means without seeing those regulations. It's been the point from the very beginning of the opposition's concern with this bill, or our main concern. It's very difficult to know. I think you should be totally comfortable with that argument after the Bill 171 hearings, where both you and I made that request repeatedly --
Hon Mr Hodgson: Yes, I thought it was awful.
Mr Michael Brown: -- and were responded to by the minister with over 1,000 pages of data. I don't understand why that couldn't have been made available to the committee. Obviously you can't implement this act till those regulations are ready anyway, so it doesn't change anything in terms of your time lines on this bill. That is the basic point of all of this.
Many of us are concerned that every action of this government increases the power of the executive council and reduces the input of the Legislative Assembly and therefore the people of Ontario, whom all of us, regardless of party, attempt to represent. This concentration of power in the executive council and in the Premier's office I think should be offensive to all of us. Quite frankly, it is the opposite view that you're now taking from what you took when you were on this side of the House. I think there should be some obligation on ministers of the crown to protect the democracy in this province and protect those of us who attempt to represent the constituents across this province. This total --
Hon Mr Hodgson: I do have another meeting, Mike, if you could let me respond.
The standards will not be weakened. I know what you're getting at on this. We're going to post the regulations to get as much public comment as possible. I would like to point out, though, that there is a reason for doing it this way. When you have an act, it's very difficult to change that, and you mentioned when we were on Bill 171, how many times in your history around this place have the Ministry of Natural Resources and the Ministry of Mines been able to get legislation on the floor. So if you put it into stone, so to speak, before the House on a number of things that should be dealt with in regulation, it becomes inflexible to improve. That's one of the reasons why we're doing this, is to put it in the regulations so that we can make things better or adapt over time without having to try to wait to get it back on the legislative agenda.
I know Shelley would have some sympathy for this because I know there's changes you probably wanted to make in the Mining Act and it's hard to get it back on the agenda on the House time. There's accountability into this act that's an improvement over other pieces of legislation. For instance, it has to report back to the Legislature each year on where the money's gone through the trust.
Mr Michael Brown: You didn't find that very convincing on 171.
Hon Mr Hodgson: Actually, there was a reason for that as well. I wish the manuals were done on Bill 171 at the same time as the act as well. But I would like to thank you for your time.
The Chair: Thank you, Mr Minister.
Ms Martel: May I make a friendly suggestion as the minister is leaving? I would really encourage you to have the participation of your own working group in the development of the regulations, if they have not been developed yet. You said they wouldn't be released until mid-November. I'm assuming the work is still starting.
Some of those people who came before us were particularly unhappy that they saw the bill the day it was introduced. I know they've requested that you allow them to help in the drafting.
Hon Mr Hodgson: I met with them --
Ms Martel: I think that would go a long way for you right now to actually involve them in that, because they are very good folks who are committed to trying to make the process a bit better.
Hon Mr Hodgson: Thank you very much, Mr Chair. I hope the government side will forgive me if you don't get equal questioning time. I have another meeting, if that's okay.
Mrs Sandra Pupatello (Windsor-Sandwich): Oh, they don't have any questions.
Hon Mr Hodgson: Okay, thank you. For the record, Shelley, I have met with the working group and we have discussed that.
Ms Martel: Yes, we know.
The Chair: Okay, just one housekeeping item: In order to allow Ms Martel to be in the House for 11 o'clock for a private member's bill she's introducing and Mr Brown wants to address that particular bill, we are only going to meet until 11 o'clock this morning. Then we will recess until 3:30 this afternoon.
Mr Terence H. Young (Halton Centre): Mr Chairman, on housekeeping, could we possibly have a window open?
Clerk of the Committee (Ms Lynn Mellor): I will attempt to do it.
Mr Michael Brown: Good idea.
The Chair: We can certainly accommodate that.
Clerk of the Committee: Not necessarily. I think they're bolted shut.
Mr Michael Brown: I don't believe I've received the legislative research summary of this bill, of the presentations. No, the research one. That's the ministry's. The summaries of the presentations.
The Chair: Okay, the clerk will check on that, Mr Brown. I'm not sure whether we received that. We received one after the first two days.
Mr Michael Brown: Yes, but we've had hearings since then.
The Chair: The final one involved the last day of hearings and I don't believe we've seen that, so we'll check on the availability of that.
Okay, we'll now proceed into clause-by-clause and get done what we can this morning and we will continue on this afternoon.
Are there any amendments to section 1?
Ms Martel: Mr Chair, before we begin, do we have everyone's amendments now and can we put them in order? Because we were receiving amendments in front of us as the minister was speaking, so it would be helpful if the clerk could just advise which ones are coming up until we can get them in order.
Clerk of the Committee: Yes, I put mine into an order so I can indicate where we're at.
Ms Martel: Thank you.
The Chair: Do I understand all the amendments have been received?
Ms Martel: I think they're all here, yes.
Mr Michael Brown: Legislative counsel is still working on a number of ours but they're not till later on in the bill. They will be available as soon as counsel is finished with them, but they don't pertain to the first section. We apologize for that, but under the very tight time lines that we've been working, it's been a little difficult for counsel to get them ready in time. We asked counsel if they would prepare the first group so we could deal with them without delaying the committee in any way.
Mr Frank Klees (York-Mackenzie): Mr Chairman, I would like clarification. We had a distribution this morning and do I understand that what was distributed at the table today we have not seen before, that these are amendments in addition to the amendments that were tabled previously?
Clerk of the Committee: Yes.
The Chair: This group, starting with subsection (3)?
Mr Klees: That's right.
The Chair: Yes, they are additions.
Mr Klees: Okay.
The Chair: Can we proceed with section 1? Did you get an answer on the --
Clerk of the Committee: Not yet.
The Chair: Are there any amendments to section 1?
Mr Klees: I move that section 1 of the bill be amended by adding the following subsection:
"(0.1) Subsection 1(1) of the Aggregate Resources Act, as amended by the Statutes of Ontario, 1994, chapter 23, section 61 and 1994, chapter 27, section 126, is amended by adding the following definition:
"`abandoned pits and quarries' means pits and quarries for which a licence or permit was never in force at any time after December 31, 1989 (`puits d'extraction et carrières abandonnés')."
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Subsection 1(6) of the bill adds a new subsection 1(2) to the act to attempt to define abandoned pits and quarries. However, as currently worded, abandoned pit fund moneys could be applied to sites formerly licensed and since revoked under the Aggregate Resources Act.
This motion clarifies that sites previously authorized under the act will not be eligible for abandoned pit fund moneys. Instead, those sites will be clearly covered by the pooled fund, which would be administered by the trust as described in item 1 of the new subsection 6.1(2). So the motion is also more appropriately placed with other definitions in the act in subsection 1(1) instead of 1(2).
Mr Michael Brown: If I'm understanding this correctly, the pooled funds will be looking after all pits and quarries, regardless of whether they ever held a licence or not?
Mr Klees: No.
Mr Michael Brown: No. That's backwards.
Mr Klees: That's why we're introducing this definition, this clarification.
Mr Michael Brown: Okay. Thank you.
The Chair: Any further discussion on that amendment? Shall the amendment carry? All those in favour? Opposed? The amendment is carried.
Are there any further amendments to section 1?
Mr Klees: I do have another one.
I move that subsection 1(6) of the bill be struck out and the following substituted:
"(6) Subsection 1(2) of the act is repealed."
Bill 52 repealed subsection 1(2) of the act and substituted a new subsection dealing with abandoned pits and quarries. The previous motion more appropriately places that substitution in the definitions subsection. This motion retains the repealing provision.
The Chair: Any discussion on that? Any questions? Shall the proposed amendment carry? All those in favour? Opposed? The amendment is carried.
Are there any further amendments to section 1? Seeing none, shall section 1, as amended, carry? All those in favour? Opposed? Section 1, as amended, carries.
Amendments to section 2?
Ms Martel: I have a question for the parliamentary assistant. I believe I'm in the right section. We had a discussion about whether or not the ministry's intention was to have crown employees or any other person designated as inspectors for the purposes of the act. I believe the parliamentary assistant had indicated that the reference here was to crown employees, but if that's the case, I think the whole section should be deleted and we revert to the old wording to make that clear. My concern in this section is that "any person" doesn't mean, for me, a crown employee.
Mr Klees: If I recall correctly that exchange that we had, I clarified at the time that one of the reasons we wanted the wording as it is is to ensure that we could designate responsibilities to employees of another ministry. If you recall, we're looking at designated MTO staff to carry out some of these responsibilities. That was one of the reasons, because if we left it under the existing wording, it would limit us to employees of MNR. It's our intention to allow for the flexibility as the wording provides now, and we would not be prepared to entertain an amendment to that section.
Ms Martel: If I might, to the parliamentary assistant, you make a specific amendment under subsection 32(1) where you do say very clearly that the minister may authorize any employee or class of employees of the Ministry of Transportation to exercise any power or perform any duty vested in the minister under this part. That's a whole section that talks about wayside permits and allows the MTO employees to look after that.
My question is, is it your intention then to have MTO employees look after other responsibilities under this act which would clearly fall under the domain of MNR employees, ie, with respect to licensing and inspection of operator sites, not just MTO wayside pits?
Mr Klees: I think the intent here is that we allow ourselves the flexibility to have other employees perhaps from other ministries perform functions, or beyond that. The direction we are taking, as you know, in this bill is to bring into partnership the private sector in many areas. I think as the minister indicated earlier, what we're really trying to do in this legislation is to provide ourselves some flexibility to accommodate circumstances and to ensure that we're carrying out the functions in the most efficient way. Based on that, we do feel that this latitude is necessary.
Ms Martel: Then I say to the parliamentary assistant, I'll have to vote against this section because what I want to avoid and what I see can happening under this section is that you would actually have people from the industry who could do inspectors' work. I don't think that's appropriate and I don't think the public will think it's appropriate. That's really why I wanted that clarification and that whole section dropped.
Mr Klees: I appreciate that.
Mr Michael Brown: On the same point, we had at least one presenter I can recall speak to what they had as a perception that an MTO employee would not be the appropriate person to be inspecting his own ministry, that in MTO's case they have a very vested interest in the wayside pits etc, and they thought that perhaps a more neutral third party might be the appropriate inspector; ie, somebody from MNR. What are your thoughts? Do you have any concerns regarding the fact that MTO inspectors would be inspecting themselves, so to speak?
Mr Klees: I want to clarify that there's no intention whatsoever that the enforcement function be delegated to MTO employees or any other ministry employees other than MNR. It's with regard to some of the other functions that we envision the delegation of responsibility, but enforcement will clearly remain with MNR employees.
Beyond that, I also want to confirm for you that any delegation of responsibility that we place on employees of other ministries, should that happen, all of them would be under obligation to enforce the regulations of the act. If they don't do so, they will be in contravention and we would have to deal with that. I think in the interests of what we're trying to achieve here in this legislation, I'll restate again that we need that flexibility to make those delegations when appropriate.
Mr Michael Brown: I appreciate the assurances, but the act and what you're saying don't say the same thing. What the act does is permit you with the absolute ultimate in flexibility, without any restriction. I really don't have much problem with what you're telling me, but as a Legislature our responsibility is to make laws that say what you mean. This doesn't say that. For that reason, we can't support it.
I don't understand why you can't spell this out clearly in terms of what the ministry's really looking for. I understand the need for flexibility in operations; I think everybody does. But if you want that, tell us how you're going to do it. This is just so broad it permits any minister at any time to do whatever he or she might deem appropriate, which may not be what the Legislature at that time deems to be appropriate. Not to put too fine a point on it, but it's just wide open. There's absolutely nothing restricting the minister in this situation.
Mr Klees: Mr Brown, I appreciate your comments and I can assure you that we will treat the latitude of this legislation with the utmost of care and in a responsible manner. We obviously agree to disagree on this particular point.
Mr Michael Brown: I'm taking you at your word. That's not the problem. But governments change. You may not be the parliamentary assistant 15 years from now.
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Mr Klees: Or next week. Who knows?
Mr Michael Brown: Exactly. Or the minister changes.
I think if I talked to my colleague Ms Martel, they would probably have hoped in 171 to have nailed down a few of those items within that act in the act rather than permitting the regulations to do it.
What I'm saying is that this has nothing to do with the government that's presently in power, because governments come and governments go. Your assurance is fine for now, but down the road, who knows?
Mr Klees: Let's deal with that down the road then. I appreciate your confidence. Thank you.
Mr Michael Brown: But the Legislature doesn't get a shot at it.
The Chair: Okay, thank you, Mr Brown.
Shall section 2 carry?
Mr Michael Brown: We'd like a recorded vote.
The Chair: Mr Brown has asked for a recorded vote. All those in favour of section 2?
Ayes
Danford, Klees, Maves, Ross, Stewart, Tascona, Young.
Nays
Michael Brown, Martel, Pupatello.
The Chair: Section 2 carries.
Mr Brown, according to the legislative people, the summary was hand-delivered to everyone's office.
Mr Michael Brown: Okay. I'll have to find it then.
The Chair: Are there any amendments to section 3?
Ms Martel: I move that section 3 of the bill be amended by adding the following subsection:
"(2.1) Section 5 of the act is amended by adding the following subsection:
"(2.1) All private land in Ontario shall be deemed to have been designated under subsection (2) on the day that section 3 of the Aggregate and Petroleum Resources Statute Law Amendment Act, 1996 comes into force."
The purpose of the amendment is to, as a matter of principle and frankly as a matter of practicality, allow for designation of the entire province. We heard, particularly during the presentation made by the Northern Ontario Aggregate Producers, of the discrepancies between operators who operate in lands that are designated and those who operate in lands that aren't, how uneven the regulations are, then, that are applied, and frankly how they find that to be discriminatory, particularly in the sense of their ability to compete, because they have costs that those who operate in undesignated areas don't.
The amendment I am moving, which comes from the aggregate producers, is one that would say that the ministry would move to designate all areas. That would do two things, frankly: ensure that the environmental standards that are set are applied evenly right across the province and also provide for, I suspect, a much more even field for those producers who currently operate now outside of the regulations and outside of the designated areas.
Mr Klees: I think you heard the minister indicate a willingness to consider that. What I'd like to propose is that because we haven't seen this amendment until this very moment -- we certainly are aware of the issue and there's obviously some support. I can tell you personally that I see the rationale for extending the designation, whether it's to the entire province or, as you indicated, you might be willing to compromise on some specific limitations of that.
As you're aware, and it's my understanding, the designation can take place by regulation. It does not have to take place through legislation. Perhaps I could give you an undertaking that we will review this and we could be in discussion with you and perhaps Mr Brown, and we will then deal with this matter through regulation. We have to consider the cost implications of this, as you're aware. There are implications to how we deal administratively with taking on that additional burden.
If you're agreeable to that, that would be my proposal.
Ms Martel: I'd be happier if it was in the act, for a number of reasons. However, given that I do believe you're going to have to have some discussions with the producers, I'll wait and accept that it will be discussed further with us as well to determine exactly what the implications are and how far the ministry can move in this respect.
The Chair: Mr Brown, any comment?
Mr Michael Brown: My understanding is that at present we do have some difficult areas that are not designated. We've had people from Sudbury and Sault Ste Marie, but there may be more. Does the ministry have an estimate of how much land really is needed to rectify those problems? As a northern member and a northern rural member, I understand there is quite a bit of difference in operations across all of the north and I would have some concern myself about automatically bringing the designation all across the province when it may achieve very little and cost the government a great deal of money, and municipalities and operators a tremendous amount of money, and not really improve much of anything. Do we have an estimate of how many townships -- I've heard 11, 16, that kind of number -- in terms of the problem areas where this is of some difficulty?
Mr Klees: Mr Brown, if I might, I know that you have some concerns about this, which is the reason I suggested that we have some further discussion around this. What we don't want to do is solve one problem and create a problem for someone else.
Mr Michael Brown: That's my concern.
Mr Klees: I'd suggest, rather than deal with the details of that here, we agree that we'll have some further discussions around that, we'll look at the details, we'll look at the implications, and then deal with it through regulation.
Mr Michael Brown: Are you suggesting we stand this down for now?
The Chair: Do you want to stand this section down? You don't want to withdraw your amendment? You want to stand this section down?
Mr Klees: Mr Chair, if I might, my preference here is that we not deal with this matter by way of amendment to the legislation. That's what my recommendation is, that we deal with it through regulation. I thought we had agreement that that's how we were going to do it. If so, I don't see the need to stand this down.
The Chair: Ms Martel, are you prepared to withdraw your amendment? Okay. Any further amendments to section 3? Shall section 3 carry? All those in favour? Opposed? Section 3 carries.
Are there any amendments to section 4? I guess we have two that are identical, one submitted by the Liberals, one by the NDP. So on a first-come, first-served basis we'll deal with Mr Brown first.
Mr Michael Brown: I move that subsection 6.1(1) of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by striking out "may" in the first line and substituting "shall."
We are concerned, as some presenters have also been, about the permissive nature of the word "may." We do not understand why there is any degree of discretion here for the minister whatever. By substituting "shall," it means it will be done. That's the short answer.
Mr Klees: The concern we have here is that, as you know, the trust has not yet been established. As you know, the ministry is in discussion with the industry in terms of establishing first of all the composition of that trust, the drafting of the trust agreement, the details around how that trust will be established.
We're very positive about the discussions. The reason it was drafted as is is that, again, we felt we needed to allow ourselves the option that if the discussions did not result in as positive a conclusion as the ministry expects, we have the alternative to deal with this is another way.
This binds us to carry through with this regardless of what the discussions result in, so again our preference here would be that we have the flexibility and the latitude to deal with circumstances as they arise.
Mr Michael Brown: That is the strangest explanation I have ever heard. This is one of the pillars of this bill, the establishment of the trusts. If there's anything that's important about this bill, it is the establishment of these trusts. Giving the minister discretion about whether he or she may want to establish a trust is incomprehensible.
If the government is having trouble with negotiations, and I can understand that these things are complex, the minister certainly has the ability not to proclaim this until he gets it right. But to say that he might not do it is just not on. That's what this bill is about. This is one of the pillars of the bill. To give a minister discretion on this is, like, why are we here?
The Chair: Ms Martel, do you have a comment to make here?
Ms Martel: I just have to agree with my colleague. If I remember the minister's statements even vaguely, remember his statements in the House, this is the whole point of this bill; it's one of the pillars of it. Certainly I didn't get any indication whatsoever from representatives from the industry who came forward that there was any kind of problem in terms of a disagreement that it may or may not be established.
There may be some negotiations that have to go on to work out the details of how it's administered and what the obligations are etc, but I don't think we should be sitting here today determining whether or not the minister's going to do this. He's made a very specific commitment. He's talked about money that's going to go into it and he's made it really clear that this is going to happen. So do yourself a favour: Change it to "shall" and let's just keep going.
Mr Klees: We don't disagree with you in terms of the centrality of the trust. I gave you an explanation as to why the original drafting by legislative counsel was exactly as it is. If you feel strongly about it, I'm prepared to agree to it.
Mr Michael Brown: Settled.
The Chair: Okay. All those in favour of the amendment as presented by Mr Brown? Any opposed? The amendment is carried.
Any further amendments to section 4?
Ms Martel, your amendment then is withdrawn because it's identical.
Ms Martel: Mr Chair, I move that subsection 6.1(3) of the Aggregate Resources Act, as set out in section 4 of the bill, be struck out and the following substituted:
"The trustee
"(3) The minister shall appoint a person who is an employee of the" --
The Chair: Can I just interrupt you for a minute? There is a government amendment that precedes this one of yours, as I understand the numbering system here.
Mr Klees: I move that section 6.1 of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by adding the following subsection:
"Payments to trust
"(6.1) Any amount payable to the trust is a debt due to the trust."
The Chair: I'm a little confused here. That's not the one I thought you were going to introduce in the order that I have here.
Mr Klees: If you want another one, I'll give you another one.
The Chair: I'm trying to get them in the right order.
Mr Klees: Okay, I'll give you the next one.
The Chair: I believe the next one in order would be 6.1(2)?
Mr Klees: That's it. It was in the wrong order in my book. We may have to designate the responsibility for ordering these amendments to another employee. Would you like me to go ahead now?
The Chair: In actual fact, it is 11 o'clock. We did agree to recess at 11. That will give the clerk an opportunity to put the amendments in order, and maybe this afternoon we can have less confusion. We will start with 6.1(2). We're recessed until 3:30.
The committee recessed from 1055 to 1533.
The Vice-Chair (Mr Bart Maves): We'll pick up where we left off. I believe we were considering, in section 4, a government motion. Mr Klees, could you move that motion?
Mr Klees: I move that subsection 6.1(2) of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by adding the following paragraph:
"5. Such other matters as may be specified by the minister."
This amendment effectively will allow more flexibility in the operations of the trust as it evolves. The current provisions limit the objects that are expressly identified. The same provision is found in section 67 of the bill respecting the establishment of the oil, gas and salt resources trust.
Mr Michael Brown: Just to clarify, what conceivable other matters might there be?
Mr Klees: As you know, we are setting this trust up. It doesn't exist now. By the way, we have now ensured that the trust will be set up. Over the course of time, as matters evolve, there may be, from time to time, matters that have to be addressed, and it's only prudent that we allow ourselves that latitude.
Mr Michael Brown: I'm trying to think of what could be outside of 1 through 4 here.
Mr Klees: If you're asking if we have anything specific in mind, no. What we are doing is setting the framework to allow for other matters that may have to be dealt with, and without this we feel we may be precluding that flexibility.
The Vice-Chair: Any further discussion? Shall the amendment carry? All those in favour? All those opposed? I declare the amendment carried.
Any further amendments to section 4?
Ms Martel: I move that section 6.1 of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by adding the following subsection:
"Use of payments
"(2.1) Payments made under paragraph 4 of subsection (2) to the crown in right of Ontario, a regional municipality or a local municipality shall be used only for the purpose of environmental protection or rehabilitation."
I was advised earlier by legislative counsel that the crown cannot appear in this particular amendment because only the crown can determine disbursements of funds, but let me explain to the parliamentary assistant why I'm moving this particular amendment. I want to make it clear that money that comes out of the trust and then is paid to a municipality or a regional municipality is going to be used for very specific purposes, either for rehabilitation or environmental protection. I'm trying to narrow the scope to ensure that money that goes in for a specific purposes, because it is going in for a specific purpose, when it goes out to municipalities and regional municipalities has to be for that intended purpose. "The crown" should be deleted because if it's kept in, as it appears, it will be out of order.
The Vice-Chair: This amendment is out of order.
Ms Martel: Because "the crown" appears, right?
The Vice-Chair: As it's read.
Ms Martel: Then I would want to just strike out from "the crown in right of Ontario," and then have it read, "Payments made under paragraph 4 of subsection (2) to a regional municipality or a local municipality shall be used...." Do you want me to read the whole thing again? Subsection (2.1) is revised and would read, "(2.1) Payments made under paragraph 4 of subsection (2) to a regional municipality or a local municipality shall be used only for the purpose of environmental protection or rehabilitation."
The Vice-Chair: Does that satisfy counsel? Okay. With that change in the motion, in the amendment, then it is in order. Shall we have some discussion on this? You've given some introductory comments? Does the parliamentary assistant wish to comment?
Mr Klees: I'd like to point out that the ministry already has the authority to focus the manner and purpose of any disbursements under clause 67(f) of the Aggregate Resources Act. That's done by regulation. Our position would be that this amendment, on the basis of the fact that the authority is there already, would be redundant and not necessary.
Ms Martel: If I might, though, the disbursement here is being made by the trust, not by the minister, and the trust is a new creation under this particular act. My argument would be that you've clearly got two different sets of authority. Whatever the minister does in terms of disbursements of other moneys is unrelated to what I'm trying to get at here, which is my concern that the money that flows out is tightly monitored, that it goes out for the very specific purposes, as I've outlined, of environmental protection or rehabilitation, and that the municipalities, regional or local, are authorized to spend but only in that regard.
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Mr Klees: I understand your concern. I would give you the assurance that there will be very focused limitations in terms of the disbursement of those funds. The trust will be under very clear direction through the trust agreement as to how those moneys would be disbursed. As you're probably aware, the trust is directly responsible to the minister, and the minister must report on an annual basis to the assembly. With all of those safeguards in place, we would not feel comfortable in supporting this amendment.
The Vice-Chair: Any further discussion? Then I'll put the question: Shall the amendment carry? All those in favour? All those opposed? I declare the motion lost.
The next motion I have is a Liberal motion.
Mr Michael Brown: I move that subsection 6.1(3) of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by striking out "may" in the first line and substituting "shall."
This is a relatively simple, straightforward amendment which says, "The minister shall appoint a trustee," rather than "may." The argument's similar to the one made this morning.
Mr Klees: I'd just like to get a further clarification from Mr Brown as to why he's asking for this.
Mr Michael Brown: We're setting up a trust that isn't discretionary. Setting up a trust means that you must appoint a trustee outside of the crown. I think that's what you're intending to do.
Mr Klees: Yes.
Mr Michael Brown: Why would you say "may," which is permissive? As a matter of fact, I don't think it does what you want it to do unless it says "shall."
Mr Klees: I don't personally have a problem with it. I'd like you to give me about 30 seconds to confer. I'm prepared to support that.
Mr Michael Brown: Well, thank you.
The Vice-Chair: Any further discussion? Shall the amendment carry? All those in favour? All those opposed? The amendment carries.
Our next motion on subsection 6.1(3) is similar.
Ms Martel: I move that subsection 6.1(3) of the Aggregate Resources Act, as set out in section 4 of the bill, be struck out and the following substituted:
"Trustee
"(3) The minister shall appoint a person who is an employee of the crown as trustee of the trust."
I'm moving this because I believe that the responsibilities with respect to the trust and the important work with respect to rehabilitation and all of the other things that are outlined in sections 1, 2, 3 and 4 should remain under the jurisdiction of a crown employee. It is the same situation that has already been in place for some time under the Mining Act where the rehabilitation funds and disbursement of the same fall under the jurisdiction and responsibility of a crown employee. It is my feeling that there is more accountability in that respect above the accountability that the minister has because this has to come and be reported to the House on an annual basis. For that reason, I would move that the person be a crown employee.
Mr Klees: We take the position that we would prefer that it not be an employee of the crown. We believe this is clearly a function that can be performed by someone who is not an employee of the government. Part of the intent of what we're trying to do through this legislation is to remove government from those functions that could be adequately performed by someone other than the province. We really feel this amendment would defeat the flexibility we're trying to achieve by establishing the trust and by shifting a lot of the administrative responsibilities outside of the purview of government.
Ms Martel: The disagreement we'll have here and in section 15 is fundamentally about the change in direction the government is making. I see most of what is happening here is a direct result of the layoffs the minister has already announced, and now you're trying to find the bodies to fill that in. I don't think we're going to come to a successful resolution of this matter.
The Vice-Chair: Shall the amendment carry? All those in favour? All those opposed? The amendment is not carried.
The next two motions are identical: a Liberal motion and an NDP motion. The NDP motion arrived first so I'd like to hear that motion. Sorry, Mr Brown.
Ms Martel: If there are some others, we can switch later, Mike, if you want.
I move that section 6.1 of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by adding the following subsection:
"Advisory committee
"(3.1) The minister shall establish a committee composed of representatives of the aggregate industry, environmental organizations, municipalities and others to advise the trustee of the trust on the exercise of the trustee's functions."
The reason this amendment is being moved is that during the course of the public hearings I believe we heard a number of presenters who expressed concerns about how funds would be disbursed, who would have control over the disbursement of such funds and how other stakeholders outside the industry who are interested in aggregate resource extraction could have some role, a meaningful one, in how the entire trust would work.
The way I have chosen to get around that is by making it clear that the minister will not only have the power to appoint a trustee who will be administratively responsible but that trustee will also have to get some advice, take input etc from other stakeholders who are interested in all these matters. It's trying to respond to those concerns that were raised.
Mr Klees: If I might respond to that. Ms Martel, I believe we will achieve your end goal. We made note of the comments that were made throughout the hearings and we agreed that it should be a broad base, that there should be broad input into the trust and into the management of the trust.
The way this will function is that the trustee to be appointed will be a corporation. The corporation will have a board of directors, and that board of directors will then be broadly constituted to ensure that representation from other stakeholders is there. We would then look to that board of directors to effectively provide what you're looking to this committee to bring to the table.
We feel that by establishing an additional committee we would be creating some unnecessary levels of involvement. We feel we will achieve the same end goal you have in mind through the constitution of the board of directors.
Ms Martel: If I might, Mr Chair, I'd be perfectly happy to withdraw this amendment if I could get a government one that would put that in place. Obviously my concern is that if that is your intention -- you've already set out for the trustee what some of the responsibilities of the trust will be -- if you're that far down the road to know that you will have a board of directors that has multi-stakeholder representation, why don't we put it in?
Mr Klees: You and I are going to disagree about how we go about this, I'm sure, because we intend to do that through regulation. I don't think, at this point in time, we would be prepared to incorporate that into the legislation itself.
The Vice-Chair: Any further discussion? Shall the amendment carry? All those in favour? All those opposed? I declare the motion lost.
The next motion is a government motion. Mr Klees.
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Mr Klees: I move that section 6.1 of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by adding the following subsection:
"Payments to trust
"(6.1) Any amount payable to the trust is a debt due to the trust."
This simply provides for a mechanism for the trust to recover overdue accounts. Characterizing the amounts payable to the trust as a debt allows the trust to take whatever action may be necessary to recover overdue amounts.
Mr Michael Brown: A question of clarification on that matter: If one fell behind in the payment of moneys to the trust, would that be subject to a suspension of the licence of the operator?
Mr Klees: I'm told yes by staff flanking me.
Mr Michael Brown: So you would be in the unenviable situation, perhaps, of trying to collect a debt due from someone who is not operating.
Mr Klees: I think the other side of it, Mr Brown, is that it would probably ensure that these fees are paid, because to lose one's licence is a pretty strong consequence.
Mr Michael Brown: I understand. Thank you.
The Vice-Chair: Any further discussion? I'll put the question. Shall the amendment carry? All those in favour? Opposed? The amendment carries.
The next amendment I have is an NDP motion.
Ms Martel: I move that section 6.1(11) of the Aggregate Resources Act, as set out in section 4 of the bill, be struck out.
This section concerns the refund that will be going back to operators in the province, as I understand the changes that the government proposes. Under the act that's in place now operators get a refund of money which has been held as credit in the case of their having achieved certain rehabilitation processes they had set out to achieve. They get a refund of the money that had been held in trust. If I read this properly it appears that one year after the new act goes into effect, after the changes go into effect, all operators are going to get a refund of money that before had been held in trust, whether or not their rehabilitation had been completed.
I am moving this because I don't understand why we would do that. It seems to me that part of the purpose of having the money in trust is to guarantee that there will always be enough funds to deal with ongoing operations, but also abandoned operations. I know you want to hold $5 million to $7 million aside and use that for sites where licences have been revoked or which operators have abandoned etc, but I'm not sure why you would give money back to people. I don't see what the incentive is then for them to continue to do their rehabilitation. Why would you change a process that currently has been in place?
Mr Klees: If I might respond to that, the problem is one of practicality. Right now there are some 4,800 accounts that the sixty-some-odd million dollars are spread out over. What we're facing now is that most of that money isn't being used simply because they aren't in contravention. Because of the fact that they are now specifically focused for those accounts we cannot move money from one account to another or use those dollars for general rehabilitation.
What this floating fund does is to free up -- you're right -- by way of refund on a pro rata basis to those individuals who have made contributions to the fund, but it then creates a floating fund that can be used for rehabilitation across the province, wherever it's needed.
Right now we don't have that flexibility. Your amendment would effectively force the fund to stay at the $60 million. It would force us to retain the full $60 million because we wouldn't be in a position, with your amendment, to refund those dollars that aren't needed in the fund.
As I said, it's been on deposit now for a number of years and it's so impractical that it's simply on deposit. All these companies are carrying these assets on their balance sheets. It's not our money. We're simply returning money to the industry that's theirs in any event. The quid pro quo to this is that we're now creating a floating fund that will actually be useful to us in rehabilitation.
Ms Martel: If I understand how the current act works, you return the money to them upon their successful completion of rehabilitation. Am I wrong in that understanding?
Mr Pichette: Maybe I can speak to this. Their accounts are closed off when the licences are surrendered and effectively all the rehabilitation is completed. Our analysis has indicated that from a perspective of dealing with defaults, those sites that are left abandoned without enough money in the account, we'll need somewhere in the order of $6 million to $10 million in the floating fund. As a result there isn't a need to keep the $60 million in an account to do that.
There is provision for the Lieutenant Governor in Council to add a fee for a prescribed time to replenish the fund, should it get too low. That is basically the intent. We're returning their money because we feel there will be sufficient dollars in the floating fund at the $6-million to $10-million range. Currently on an average basis, in terms of sites that are being revoked and deemed abandoned, it doesn't come anywhere near the $6-million to $10-million pricetag in terms of rehabilitation per year, not even close to it.
Mr Klees: Perhaps I could just add that the circumstance we face right now is that it's very possible to have one site that has a segregated amount of money, say $5,000, dedicated to it; it requires rehabilitation, but the rehabilitation cost may well be $50,000, and all that's available for that site under the current structure is $5,000. We have no way of moving money from other accounts to that particular site. This restructuring is going to allow us to spend the $50,000 on that particular site because of the floating nature of the fund.
Ms Martel: I'm not disagreeing with the floating nature and the pool where you would have no other money to deal with defaults. My only concern is, what incentive or what kind of security does the government then have that operators who continue to operate are setting aside the right amount in funds to deal with their legitimate rehabilitation costs?
As I see it now, because they have to put that on deposit, the government has some security that there is going to be money there when that starts. You will have more and more people continuing to operate and at a certain point that floating fund, I would think, is going to expire. I see it as an additional form of security for the government that money already in there is held for people who are legitimately doing what they are supposed to be doing plus the floating fund being available to deal with people who have abandoned their responsibilities.
Mr Klees: I think I'd like to have staff comment on that.
Mr Pichette: Maybe I can make one comment here. In our analysis of the current system, the process of collecting a security deposit and refunding does very little to encourage rehabilitation. What we have found that encourage rehabilitation are the site plans that were introduced in 1990 under the Aggregate Resources Act, and that progressive rehabilitation and final rehabilitation are a matter of law through those site plans. That's what dictates rehabilitation, not the fact that they can get money back.
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Mr Klees: Just one other component to this is that sites are required to do progressive rehabilitation, and as long as they're operating, that is part of the licence agreement. The pooled fund would only be called upon in the event of revocation of a licence, so I think the fact that it's really an insurance -- and the basis on which I believe that staff have done the calculation as to how much would be necessary to retain, I think they've used an average of $300 per hectare of disturbed land that's inventoried right now. It is based on what the projected need is, the projected liability, and staff is advising us that the amount -- and we're not firmed up on that amount; you're right that it's in the range of $5 million to 10 million -- but certainly it is based on past experience in terms of what the actual cost would be to rehabilitate.
Mr Michael Brown: I'm a little concerned about the wording. It seems to me, the way this is written, that it would be possible -- as a matter of fact it would be mandatory -- to refund the money to the person in whose name the account was held even if their licence was in suspension or they were no longer active on the property. Is that the intent, that if we had an operator whose licence was suspended because he had not met the criteria of the act, you would still refund the money to that company or person?
Mr Klees: That's not my understanding, but perhaps I'll have legal counsel speak to that.
Ms Krystine Linttell: Yes, that's right, there is a discretion there in terms of the amount. But, Mr Brown, you're right that those kinds of situations could manifest themselves.
Mr Michael Brown: It does not concern the ministry that we could, in effect, be rewarding or sending money back to a bad operator who had not been meeting the conditions of his or her licence?
Ms Linttell: If it's a situation where there is rehabilitation to be carried out, there would still be a discretion to use part of that, the amount that would otherwise be refunded, to take care of those rehabilitation requirements.
Mr Michael Brown: How so?
Ms Linttell: In such amounts as the minister may direct.
Mr Michael Brown: It says "the trust shall." That doesn't sound like a lot of discretion to me.
Ms Linttell: "...shall refund to the person in whose name the account was held such amount as the minister may direct."
Mr Michael Brown: Oh, I see. That might mean you would withhold a certain amount or maybe -- Okay. That helps.
Ms Linttell: That's correct.
Mr Klees: That would seem logical.
Mr Michael Brown: I guess I read it as "may direct" was probably just an interesting way of saying the amounts will vary.
The Vice-Chair: Any further discussion on Ms Martel's motion? I will put the question. All those in favour? Opposed? I declare the motion lost.
The next motion is a Liberal motion. Ms Martel, your motion following this is identical, so I'm going to allow Mr Brown to put his.
Mr Michael Brown: I have better luck.
I move that section 6.1 of the Aggregate Resources Act, as set out in section 4 of the bill, be amended by adding the following subsection:
"(12) On the day section 4 of the Aggregate and Petroleum Resources Statute Law Amendment Act, 1996 comes into force, all remaining amounts set aside under subsections 14(5) and 24(4) of this act, as those subsections read immediately before the coming into force of section 4, are transferred to the trust."
The Vice-Chair: Under standing order 56, I believe this motion is out of order. Can I quickly quote 56 to you?
"Any bill, resolution, motion or address, the passage of which would impose a tax or specifically direct the allocation of public funds, shall not be passed by the House unless recommended by a message from the Lieutenant Governor, and shall be proposed only by a minister of the crown."
So in layman's terms, we can't --
Mr Michael Brown: I can't ask the government to spend money.
The Vice-Chair: It's directly allocating funds.
Mr Michael Brown: To a private trust. Is directing the allocation of money to a private trust the same as to the crown?
The Vice-Chair: You're still directing the allocation of public funds.
Mr Michael Brown: Maybe it would be private funds to a private trust.
The Vice-Chair: It's out of order.
Ms Martel: If I might provide some clarification, and then the parliamentary assistant can decide whether he wants to do anything in this section.
What we were trying to do was ensure that all money that was related to both the abandoned pit and quarry fund and the money that was in the rehabilitation security system would be transferred at the same time. That was the point of the amendment, just to make sure that all funds that were being held for those two purposes flowed into the trust at the same time. Whether or not you want to do something with it, that was the clarification we were trying have around this section.
Mr Klees: I understand your intent, and let me just be clear that part of the complication here is that the crown has some outstanding commitments now and has some projects under way and needs the ability to complete those obligations and, therefore, needs to be able to draw on some of those funds that are there. What we wouldn't be prepared to do is to give an undertaking that every dollar would be transferred immediately. We have to retain some of those dollars in order to complete those undertakings.
I understand your concern, and in the fullness of time those dollars will in fact be transferred to the trust, net of what is required by the crown to complete its obligations.
The Vice-Chair: Thank you very much. The motion is out of order, and seeing no further motions on section 4, I'll put the question. Shall section 4, as amended, carry? All those in favour? Opposed? I declare section 4, as amended, carried.
Moving along to section 5, I have a motion from the Liberals.
Mr Michael Brown: I move that section 5 of the bill be struck out and the following substituted:
"5. (1) Subsection 7(2) of the act is repealed and the following substituted:
"Application for licence
"(2) Any person may apply to the minister for a licence.
"(2) Clause 7(3)(b) of the act is repealed and the following substituted:
"(b) ten copies of the report referred to in section 9."
The reason for the amendment is that we were wondering why there is a distinction in classes of licences between (a) and (b) and why, from an environmental standpoint, they would be treated differently. This was raised by a number of presenters, in particular I believe the Canadian Environmental Law Association.
Mr Klees: The reason for the two classes of licences -- and I think you're certainly well familiar with this business and I'm actually surprised that this amendment is coming from you --
Mr Michael Brown: You can never tell.
Mr Klees: We've had some discussion about the issue of a level playing field and the need to recognize that there are different sizes and different levels of operation, and that is the reason for the two different classes of licences at this point in time. I think you'll agree that it's difficult to hold a very small operator to some of the same operational standards that a major operator would be subjected to. The capabilities are different and the circumstances are very different, so we've tried to recognize that.
What your amendment would result in is the elimination of classes, as you know, and we just feel that fails to recognize the inherent differences in operations that we should be sensitive to. So if you're wondering, I wouldn't be supporting your amendment.
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The Vice-Chair: Any further discussion?
Ms Martel: I have a question for the parliamentary assistant. Having heard what you just said, I'm looking at your proposed amendment to subsection 9(1), where you're removing the distinction between class A and class B.
Mr Klees: I like my amendment better.
Mr Michael Brown: Better than the answer.
Ms Martel: Didn't you just give a contradictory explanation? Did I miss something here? You said you wouldn't vote for this because it retains the distinction between the two licences, but isn't your amendment coming up going to delete that very distinction?
Mr Klees: No, it is very different. We will be retaining the two classes. What we are saying is that because we're moving to a standards-based structure it's very important that we be able to define the standards up front that would in those cases apply to both classes of licences, but at the same time, we feel it's very important that we be able to make a distinction between the classes of operation.
The Vice-Chair: Seeing no further hands in the air for discussion on the Liberal motion, I will put the question. Shall the amendment carry? All those in favour? Opposed? I declare the motion lost.
That being the only proposed amendment to section 5, I will put the question on section 5. Shall section 5 carry? All those in favour? Opposed? Section 5 carries.
Section 6 of the bill: I believe there is a Liberal motion.
Mr Michael Brown: In light of what just happened, I don't think I'll bother to put that one.
The Vice-Chair: The Liberal motion is withdrawn.
Seeing no further motions to amend section 6, I'll put the question on section 6. Shall section 6 carry? All those in favour? Opposed? I declare section 6 carried.
Section 7: I have the government motion first up to amend section 7, subsection 9(1).
Mr Klees: I move that subsection 9(1) of the Aggregate Resources Act, as set out in section 7 of the bill, be amended by striking out "Class A" in the first line.
The Vice-Chair: Discussion?
Mr Klees: This motion deletes the reference to a class A licence and will create a requirement that a report must accompany both classes of licences. As I was saying earlier, it's not to do away with classes in general but to ensure that the standards-based approach that we're applying to this industry applies to both classes.
Ms Martel: If I might, just for the parliamentary assistant, in this section, as in the section we just dealt with, all of the requirements that used to appear in the act have been moved into the regulation. We've gone through on this committee on more than one occasion what the opposition's feelings are about that particularly, because we have not had the benefit of seeing the regulation. I will be voting against this section because I really believe the act is much stronger when the wording appears and, secondly, because we should have been able to see some of that work before we ended up in this position. We've been dealing with a shell, and it's been very difficult to do so during the whole process.
The Vice-Chair: Any further discussion?
Mr Klees: If I might reaffirm for Ms Martel that the end result will be that there will be stronger standards for both classes as a result of the initiative we're taking. As the minister confirmed when he was here this morning, when the regulations are ready by way of draft, they will be circulated to the opposition parties. I think previously I've invited the opposition members to provide us with names of stakeholders or stakeholders' groups that they want those regulations distributed to. We look forward to their input and the circulation of those regulations before they're finalized.
The Vice-Chair: Seeing no further discussion, shall the amendment carry? All those in favour? Opposed? The amendment carries. Mr Brown.
Mr Michael Brown: Is there not another government motion before?
The Vice-Chair: No, I just have the one, section 7 of the bill, subsection 9(1), which was just read.
Mr Michael Brown: I'm not going to make that. Sorry.
The Vice-Chair: You'll withdraw that motion, then, Mr Brown?
Mr Michael Brown: Yes.
The Vice-Chair: Seeing no further proposed amendments to section 7, I'll put the question. Shall section 7, as amended, carry? All those in favour? Opposed? Section 7, as amended, carries.
Moving to section 8, the first motion is a government motion.
Mr Klees: I move that subsection 11(3) of the Aggregate Resources Act, as set out in section 8 of the bill, be struck out and the following substituted:
"Objections
"(3) Any person may, during the prescribed consultation procedures, give the applicant and the minister written notice stating that the person has an objection to the application and specifying the nature of the objection."
The reason for this is that we believe it's important that the nature of the objection be specified. This will give the opportunity to the applicant to resolve any concerns that may have arisen in the course of the application procedure.
The Vice-Chair: Any further discussion? Shall the amendment carry? All those in favour? Opposed? The amendment carries.
The next motion on the table is from the Liberal Party. Mr Brown.
Mr Michael Brown: I will not be placing that motion.
The Vice-Chair: Mr Brown withdraws the motion. That's the motion which would have amended subsection 11(5). Now, Mr Brown, there's your next motion, subsection 11(5.1).
Mr Michael Brown: I move that section 11 of the Aggregate Resources Act, as set out in section 8 of the bill, be amended by adding the following subsection:
"Certain communications not to be considered
"(5.1) The board shall not consider any communications between the applicant and the persons who gave notice of objections if the communications were made for the purpose of attempting to resolve the objections."
The reason for this is that I think we all want the negotiations to take place in good faith. As we all know, in the negotiation process, if it is not done without prejudice, it doesn't necessarily work so well. If, during the negotiation, for example, one side gets to a position and agrees to that, the other side may not agree, but that may be taken as just a negotiating position to go further, if you understand my thinking on this. In other words, I think the negotiations should take place without prejudice. That's essentially what we're trying to do here.
Mr Klees: I'll provide Mr Brown with our comments on this. Our feeling is that it would be certainly imperative, if a matter comes before the board, that they have all of the facts of the matter available to them in order to make an informed decision. Anything of relevant information pertaining to the issue should be available to the board.
So I'm puzzled by this. I understand the concept of "without prejudice." I understand that when two parties are attempting to resolve an issue, you like to know that nothing that may be said in the course of that negotiation will be held against you, but I think what we're dealing with here is a very public issue. We're dealing with an application that, where there is a public interest and if it is referred to the board, I think it wouldn't be appropriate for us to tie the hands of the board as to the information that is made available to it to adjudicate.
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Mr Michael Brown: I don't see your problem, frankly. I think all the information could be out on the table. All we're saying is if you've got the CAW negotiating with General Motors, if it's going to go to arbitration, you probably don't want the final offer of either the CAW or General Motors there for them to move one way or the other. The information, fine, but the actual bargaining position, I think, is deteriorated quite a bit when you have that information put forward in the manner that the act, in your view, seems to be indicating. I don't see what the problem is if the understanding is -- and that's what we're trying to do. It's just that the negotiations process needs to take place without prejudice if it's going to go to a hearing, if the issue is not resolved.
The reason for doing this is that I think you're going to end up at the hearing more often. The negotiation is not going to be resolved because it's hampered by the fact that it can't just be done in good faith, knowing there's no prejudice involved with offers and counteroffers.
Mr Klees: Mr Brown, I still remain puzzled about this. I don't disagree with you in principle in terms of what you're trying to achieve, but I'm not sure that it's going to take this amendment to achieve that. Let me ask you this question: In whose interest do you feel this amendment would be? In the public interest?
Mr Michael Brown: I believe it to be in the public interest.
Mr Klees: How is that?
Mr Michael Brown: What it does is make it more likely that negotiations will succeed in resolving the problem before you have to move beyond it. I think it will help the resolution of problems without the hearing process.
Mr Klees: One of the things that I think all of us in this room want to assure is that in the final analysis the highest degree of protection for the public interest is achieved. If in the course of negotiations between two parties around a quarry operation an offer is put on the table that may have been made enthusiastically, may have gone beyond what the board would ultimately adjudicate, is that not in the public interest? Shouldn't we be trying to get the best possible deal for the public on this issue?
I don't think the parallel to an employment contract is applicable here, is all I'm saying. I just fail to get your point. I'm sorry, but I can't support your amendment.
Ms Martel: Can I just ask the parliamentary assistant if he doesn't think that position is a bit contradictory? If you look with respect to the section just above, the referral to the board, I heard you very clearly say that the board should be entitled to receive all of the information, and the public should feel very clear that all of the information has gone to the board in terms of the board being able to render a decision. But in the section just above that, it says very clearly that the minister "may direct that the board shall determine only the issues specified in the referral." So the minister has the ability to scope and to determine what issues will or will not go to the board. I have to argue that it seems to me, if we're really interested in making sure the public gets all of the goods, then we would not allow the minister to have the discretion to scope what goes as a referral before the board.
Mr Klees: They really are two separate issues.
Ms Martel: No.
Mr Klees: There's a difference between scoping a hearing and ensuring that the board deals only with the matters relevant and providing information so that the board can make a decision based on facts. I do see those as two very different issues.
Ms Martel: But my point is it's the minister who decides what's relevant. It's not the board that has that decision, as far as I can read.
Mr Klees: No, I don't think so.
Ms Martel: If the minister scopes and decides what's going to be referred, isn't he or she using their discretion as to what's relevant and what's important and what's in the public interest and what the board should make a final adjudication on?
Mr Klees: I think in that case, the minister has a responsibility to ensure that the matters that are relevant to the issue are being dealt with in an efficient manner by the board. That's all that's about. It's not about withholding information; it's simply about providing focus to the hearings.
What Mr Brown's referring to is the fact that any discussions leading up to a hearing should be privileged, and I can't agree with that.
Ms Martel: I guess my argument is that any information that led up to a decision should be part of what the board, in terms of (5), should be able to get their hands on. If you allow the minister to have some discretion about what information he or she provides to the board, I don't see how that allows the board to have a full airing or to get a full view of all the issues that came before the minister in making a decision in the first place.
Mr Klees: Ms Martel, I hear what you're saying. I think I'll restate what I thought I said previously, and that is that the intent of scoping is to focus the board's attention on those unresolved issues that the proponent was not able to address adequately in the process, rather than have the hearing bring in many other issues that have already been covered. I think part of what this government is attempting to do in streamlining not only this process but many other areas of how government is done in this province is to ensure that we deal with relevant matters, that we try to streamline, that we focus on those matters of importance. I again have to say that I don't think the issue of scoping is what Mr Brown is dealing with here.
Mr Michael Brown: It wasn't in particular, but I had considered making that motion on scoping and didn't place it.
I really don't understand what the problem is here. I think you are going to cause many more hearings. There is not going to be good-faith discussion, because one party or the other -- and I'm not sure which -- will be unwilling to move to some positions because they are afraid that it might prejudice the hearing before the board. I think you are discouraging good-faith negotiation of the issues, and you're going to end up with more issues being heard before the OMB. That doesn't make any sense to me. I think, if you want a resolution of this matter, you would prefer -- at least, I would prefer, I'm sure the citizens would prefer and I'm sure the proponent would prefer -- to have good-faith-bargaining negotiations about the particular issues.
I can't give you examples, but I would suggest to you that many negotiations involve a number of items simultaneously, where there's give and take on some, and that's the way it works. You are going to hamper that particular situation by making good-faith bargaining more difficult for both sides.
I think it's in the public interest that we get negotiated settlements for everyone involved. I don't think there are winners or losers here. I think the public wins if the citizens who have a concern or whoever has a concern can come to a reasonable accommodation with the producer.
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Mr Klees: Can you give me an example of other areas where this would apply when matters are referred to the board where previous discussions or dealings are kept privileged?
Mr Michael Brown: No, I can't, quite frankly. I'm not familiar enough. I'm not in the business of going to the OMB.
Mr Klees: I can just assure you that I personally have been involved in many negotiations that perhaps ultimately have led to a board hearing somewhere, but the fact that it may ultimately lead to a board hearing has never precluded me from entering into good-faith bargaining. I really don't see --
Mr Michael Brown: Well, you're such an upfront guy, but --
Mr Klees: I really don't see that that's going to be an issue here. I hear you; we have a disagreement in terms of what the implication will be ultimately, but I don't feel that I can support your amendment.
Mr Michael Brown: Just on this particular issue, has the minister considered kind of a mediator in these negotiations, if they look like they're pretty much there or you're informed that they're pretty much there, by one or either side?
What I'm interested in and I think the public's interested in and what I think the government's interested in is resolving the issues surrounding a pit or a quarry and making sure that ends up before a hearing of the OMB as seldom as possible, and that the resolution is actually made by people in the community and people from the company. It doesn't directly relate to this amendment but it is an issue that I believe the minister could be helpful with and I just wonder if the ministry's considered that.
Mr Klees: You're aware that the board can do alternative dispute resolutions.
Mr Michael Brown: I wasn't thinking of the board; I was more thinking of the ministry. All I'm trying to do is to keep it out of the OMB, if we can. If there are legitimate concerns that can't be resolved --
Mr Klees: I assure you I'd like to keep it out of there too, which is one of the reasons that we've put in place this mechanism and tried to put this concept of negotiation between the proponent and the other parties up front. That's really what we're trying to achieve as well. I just have to say again, I fail to see the pitfalls in this, Mr Brown, that you do.
Mr Michael Brown: I surrender.
The Vice-Chair: Thank you very much for that surrender. I'd like to put the question on this amendment. Shall the amendment carry? All those in favour? Opposed? I declare the motion lost.
Ms Martel, the next motion is similar so it doesn't need to be put because it's been discussed.
The next motion then is the government motion to section 8.
Mr Klees: I move that subsection 11(7) of the Aggregate Resources Act, as set out in section 8 of the bill, be struck out and the following substituted:
"Combined hearing
"(7) The board may consider an application and objections referred to the board under subsection (5) and a related appeal to the board under the Planning Act at the same hearing."
The use of the word "referral" in the existing section is no longer accurate due to the changes to the Planning Act. Matters are no longer referred, under Bill 20, to the OMB; they are appealed. This will make the section consistent with the Planning Act.
The Vice-Chair: Any further discussion? Seeing none, shall the amendment carry? All those in favour? Opposed? I declare the amendment carried.
I believe, Mr Klees, you also have the next motion.
Mr Klees: I move that paragraph 1 of subsection 11(8) of the Aggregate Resources Act, as set out in section 8 of the bill, be struck out and the following substituted:
"1. The board may hold a hearing and direct the minister to issue the licence subject to the prescribed conditions and to any additional conditions specified by the board, but the minister may refuse to impose an additional condition specified by the board if he or she is of the opinion that the condition is not consistent with the purposes of this act."
The Vice-Chair: Just before you get into some discussion on this, the next Liberal and NDP motions are addressing this same issue but from a different direction, so if this is dealt with then we will probably withdraw those next two.
Ms Martel: Mr Chair, can I speak against this now?
The Vice-Chair: It would be out of order, unless you want to move to amend this government motion at some point. Mr Klees, explanation.
Mr Klees: Mr Chair, what we're effectively attempting to do here is to ensure that the minister has the discretion to ensure that no conditions are imposed by the board that are not under the jurisdiction of the ministry. There have been circumstances where the board has imposed certain conditions that the ministry is not in a position to enforce. Essentially, that is what we're trying to achieve here, to provide that clarification.
The Vice-Chair: Thank you. Any further discussion? Ms Martel?
Ms Martel: Is the ministry not a party to these hearings? Yes. All right. My concern is this: We heard from a couple of presenters who said at the end of the day the board, as the court of last resort, should be the court of last resort and that if people are aware that they can go back to the minister for yet another appeal because he or she continues to have discretion in certain areas, my fear is what you'll get into is a continuing appeal, first to the minister; when the minister says no, then to the OMB. Then a proponent or someone who is objecting to a licence application or whatever may then well end up right back at the minister, saying, "We know you still have discretion in these issues and we'd like you to wield discretionary power to solve X, Y and Z."
I guess my concern is, at what point does what is supposed to be an independent body making final and binding jurisdictions do just that? Because your amendment will allow for the minister to continue to have discretion around some or other of the recommendations that either on conditions or other things that the board may set in place or outline?
Mr Klees: Let's be clear that what we're not intending here -- and I think the bill is clear that the recommendations of the board are in fact binding. What we are doing here, however, is giving a discretion to the minister in those areas where the ministry does not have jurisdiction.
Let me give you an example. One of the conditions may well be that trucks are required to tarp, and that's something that is out of the jurisdiction of the MNR and clearly falls into another ministry's jurisdiction. That simply is what we're trying to address here. There's no intention here that the minister -- in fact, the minister does not want to be placed in a position of overturning a board decision. We're simply trying to ensure that what decisions are finally made are enforceable and are within the jurisdiction of our ministry.
Ms Martel: If that's the case, Mr Klees, is there not a way that you can say that so you spell that out very clearly, that that's your intention? Because as I read it here, the only condition that applies is if the minister believes that the condition is not consistent with the purposes of the act. I am assuming those purposes are going to be pretty broad and far-ranging. If what you're trying to get at is, "This ministry has no jurisdiction; this is an MTO responsibility. Therefore, I am gong to disregard the condition as imposed by the board because I have no legal mandate to carry it out," then can we find a way to stay that so it's very clear what the ministry's intent is in this case?
Mr Klees: Okay. I thought that we had wording that made it very clear that we're bound, unless it is a matter that is beyond our jurisdiction. I am going to defer to legal counsel who I hope can just confirm and maybe lead us to the place in the bill where that is clear.
Ms Linttell: Again, I would agree with you, Mr Klees, that we certainly thought that in drafting this section that's exactly what we did state.
I don't know what to suggest because it's, yes, a question of it's really beyond the jurisdiction of the ministry to attempt to ensure compliance with certain requirements, but it's clearly not -- how shall I say -- illegal to impose that kind of condition. It's just our inability to carry out proper enforcement that essentially puts the ministry in a bind where there is other legislation that deals with it much more adequately. Basically, we want to be able, in accepting conditions, to accept those that are properly enforceable through our compliance measures as opposed to measures that are properly enforceable under the Highway Traffic Act, for instance. We were trying to devise a mechanism that achieved that.
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The Vice-Chair: Any further discussion?
Mr Michael Brown: I'm very uneasy with this section too, for I think the same reason. It's probably the wording that's making me uncomfortable here, just the fact that obviously the minister can't enforce something that's not within his jurisdiction to enforce. I'm not sure this is saying that, and it would seem to give the minister perhaps more discretion than any of us want to give him or her at this juncture, remembering that it's ministers forever. It's not a particular minister; it's ministers forever. Obviously, the minister can't enforce a condition that isn't within their jurisdiction to enforce anyway.
Mr Klees: If I could just draw your attention back to the amendment and perhaps you can help me with this, in the third from the last line of the amendment, at least in my book, "the minister may refuse to impose an additional condition specific by the board" -- and here's the operative section -- "if he or she is of the opinion that the condition is not consistent with the purposes of this act." I think it's very clear, at least it was to us as it was being drafted, what the circumstances would be under which the minister would not be bound by the decision of the board.
Mr Michael Brown: I'm glad you think it's clear.
Ms Martel: My only comment to the parliamentary assistant is, it might be clear to you and to the drafter; however, we've got to deal with a piece of legislation that other people will also interpret. My concern about "consistent with the purposes of this act" is that the act has broader purposes than just compliance. If we're trying to get at the ministry's ability to enforce compliance because it's not part of their authority, then let's get at that, but I think when you use "purposes of this act" that has a much broader sweep because there's a whole range of ministerial activity or ministry activities that take place under the act.
All we're trying to get at is that we agree that you have come up with some problems that are identified in the explanatory notes. How we narrow the scope to feel at ease that what we're doing is really limiting the minister's discretion to those specific areas around monitoring and compliance is I think what we're trying to get at, and if you can find a different bit of wording to do that, I think we can probably support this.
Mr Klees: Just on that subject, I think one of the things that we are trying to achieve was not have it too narrow.
Mr Michael Brown: I gathered that.
Mr Klees: The broader we can keep it in terms of giving definition to the purpose of the act, I think the more opportunity the minister has of washing his hands of this and in fact deferring to the board's decision. The minister does not want to overturn a board's decision, but the minister has an obligation not to be encumbered with a condition that's beyond his jurisdiction.
Ms Martel: I don't think we're disagreeing with you; we're disagreeing with whether or not the wording that appears before us does that. The argument we're making is that if you're trying to get at a minister's deciding to overturn a condition because he or she cannot monitor compliance, then let's say that. If you say the minister can make that decision and determine whether the condition is consistent with the act, my argument is the act is much broader than just the compliance issue, and so the minister has much broader discretion than to overturn an OMB ruling. If what you're trying to do is capture the examples that you gave us, we're just trying to find some words that do that in a way that I guess we don't feel does at this point. And whether or not your legal staff can come up with something, I don't know.
Mr Michael Brown: I think the difficulty we're having is in the number of discretionary words we see in those last couple of lines. It's "of the opinion" that something is "consistent with the purposes." It seems to me there's a huge amount of discretion in the interpretation of those.
If we're saying that you shouldn't impose a condition that can't be enforced by the minister and is not under his or her jurisdiction, I agree with that. I'm just not sure. This seems really broad, Mr Klees.
Mr Klees: Could I direct you to part I, which clearly states the purposes of the act? I'll just take a minute here and read for you:
"(a) To provide for the management of the aggregate resources of Ontario;
"(b) to control and regulate aggregate operations on crown and private lands;
"(c) to require the rehabilitation of land from which aggregate has been excavated; and
"(d) to minimize adverse impact on the environment in respect of aggregate operations."
Certainly we feel that is a fairly all-encompassing purpose and definition of where the minister would have jurisdiction. I have to say that we clearly don't want to be placed in a situation where we're brought into play in private agreements, development agreements to which the ministry is not party, and I think what you and our constituencies need to be assured of is that we are looking after the public interest within the jurisdiction of the purpose of this act, and we clearly are saying that.
The Vice-Chair: Considerable discussion has been had. I'd like to put the question then on this government motion. Shall the amendment carry? All those in favour? Opposed? I declare the motion carried.
The next Liberal and NDP motions are out of order. We move on to section 8, paragraph 3, which is a Liberal motion.
Mr Michael Brown: Which one?
The Vice-Chair: Section 8 of the bill, paragraph 3 of subsection 11(8) of the act.
Mr Michael Brown: I move that paragraph 3 of subsection 11(8) of the Aggregate Resources Act, as set out in section 8 of the bill, be struck out.
Unfortunately I'm not sure this is exactly the way I want to do that. I think we'll just withdraw that.
Mr Klees: I was wondering about that one.
Mr Michael Brown: There probably was a good reason. I'm just not sure what it was.
The Vice-Chair: The motion is withdrawn. Next is another Liberal motion, which deals with subsection 11(14). I think that's connected with the previous motion.
Mr Michael Brown: I believe it is too. We won't put it.
The Vice-Chair: Therefore you withdraw that also.
Mr Michael Brown: Nor 11(15), I don't think.
The Vice-Chair: Okay, so we'll withdraw that one and move to the next one, which is another Liberal motion, on 11(15).
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Mr Michael Brown: No.
The Vice-Chair: It's withdrawn.
That's the bulk of the proposed amendments to section 8. Therefore I shall put the question. Shall section 8, as amended, carry? All those in favour? Opposed? Section 8, as amended, carries.
Moving to section 9, the first motion I have is a government motion.
Mr Klees: I move that section 9 of the bill be amended by adding the following subsection:
"(3) Section 12 of the act is amended by adding the following subsection:
"Annual compliance reports
"(2) Despite clause (1)(j), the minister or the board shall not have regard to a contravention of this act or the regulations that was disclosed by the applicant in an annual compliance report under section 15.1 or 40.1, if the applicant complied with clause 15.1(4)(a) or clause 40.1(4)(a), as the case may be, in respect of the contravention."
It's proposed to add this subsection to clarify that instances of non-compliance identified in the annual report which have been remedied cannot be considered in examining the applicant's history of compliance. It's also addressing the issue of self-incrimination.
We feel it's important that while we're placing the onus on the operator to complete the compliance report, during the period of time that the operator is addressing the remedy the information being provided voluntarily can't be used against the operator by a third party so that they're not subject to charges being laid by a third party.
Ms Martel: I'd like to ask the parliamentary assistant -- I could accept that in the case where we are moving to a new system, so for the first time, as we've heard from many operators, they are finding out what's in the report, learning how to work with it -- what do you do in the circumstance, though, where you have a repeat offender? At a certain point someone who has gone through the training and is managing their site and knows what to look for is, because you have to do this on an annual basis, submitting reports that are continually showing things out of compliance. What do you do to get at that issue? Under this section they would see there is obviously no penalty.
Mr Klees: Let's keep in mind the objective of a compliance report: that the remedy is done and that the operation is brought into compliance. The condition we have in place here is that if within the prescribed time frame the remedy isn't accomplished, the licence is automatically suspended. I think if nothing else, if there are repeat offenders, what we're achieving here is that at least once a year we know they will be brought into compliance, which is something we don't have happening now.
Ms Martel: Is my reading of it incorrect then? If the minister is going to look at issuing a new licence, for example, on another site, are we not going to be able to take into account what the compliance rate has been on a different site of the same proponent? They can continue to be out of compliance and get themselves into compliance only to get a licence back or to narrowly come under the wire of losing a licence. Why do you want to have a similar problem with a licensee on another site?
Mr Klees: I stand to be corrected by staff if I'm not on the mark here, but the compliance report applies to the sites that are licensed. If you have a secondary site that has a separate licence, we deal with each licensed facility or each licensed site separately. The objective, as I said, is that we bring all our sites into compliance.
This will ensure that at least once a year we have a read on that. If they're not in compliance their licence is suspended. We feel we're introducing something that will be very effective, because we don't have that kind of hammer now within the industry. Regardless of how many times our inspectors might be on site, we don't have the same hammer that this would provide us with.
Ms Martel: But you could revoke a licence now if they were out of compliance, if an inspector went on to the site. The ministry has that authority now.
Mr Pichette: If I may, this is a consideration that's been added to section 12 of the current act that the past compliance history is now of consideration in decisions to issue or not issue a licence. What we're trying to accomplish here is that through compliance reporting there is provision for, effectively, self-incrimination. You are identifying your own violations and correcting those violations.
We don't want that to be used in terms of the history of this section, because identifying your violations and correcting them are in complete compliance with the act. The simple thing of a fence falling down and correcting it could be used against them in the future as a non-compliance issue, when in fact they were able to address it in a fairly timely manner through the compliance report.
Mr Klees: I think your concern about the track record is something that will be caught in the fact that we now will be taking into consideration the track record when it comes to issuing a new licence.
The Vice-Chair: Any further discussion? I will put the question on this amendment. Shall the amendment carry? All those in favour? Opposed? I declare the amendment carried.
The next motion is a Liberal motion.
Mr Michael Brown: I move that section 9 of the bill be amended by adding the following subsection:
"(3) Section 12 of the act is amended by adding the following subsection:
"Compliance history before OMB
"(2) Clause 12(j) applies to the board only if the minister refused to issue the licence under subsection 11(9) on the grounds that the refusal was justified by the applicant's history of compliance with this act and the regulations."
The reason we're putting this forward is that while we understand that a compliance record is an important decision and should be taken into consideration by the minister, if the minister is not giving that as a reason for denying a licence, we wonder why the OMB should be in a position to consider that. It's just to scope the hearing in some way. I think it helps the government to achieve what they're trying to achieve.
Mr Klees: This is the first time I've seen this amendment. It wasn't in my package. I don't know where it came from. I would ask, in order to do it justice, if we could stand this down and perhaps come back to it. I'd like to have an opportunity to discuss this with staff.
Mr Michael Brown: Agreed. That's fair.
The Vice-Chair: Mr Brown agrees to stand down this motion for the time being. We won't vote on section 9 until we've dealt with that. We'll move along to section 10, where the next amendment is to be put forward by the government.
Mr Klees: I move that 12.1 of the Aggregate Resources Act, as set out in section 10 of the bill, be struck out and the following substituted:
"Zoning bylaws
"12.1(1) No licence shall be issued unless the location of the site complies with all relevant zoning bylaws.
"If compliance in doubt
"(2) If the minister is in doubt as to whether the location of the site complies with a zoning bylaw, he or she may serve on the applicant a notice to that effect.
"Application to court
"(3) An applicant who is served with notice is entitled, within 30 days after being served, to make an application to the Ontario Court (General Division) for a judgement declaring that the location of the site complies with the zoning bylaw."
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The Vice-Chair: Before explanation, the following motion of Ms Martel is similar yet different. You can choose to amend.
Ms Martel: That's what I'm just trying to figure out. I have, on the one hand, added "official plans." I did that based on the brief that we got from the region of Niagara. They in their brief expressed some concerns that older zoning bylaws might not be in conformity with new updated official plans. That's why I added "official plans" to my amendment, but I'm not sure if that's acceptable to the parliamentary assistant. I have a question about one other piece of yours to know whether or not we can have an amendment here that will work for all of us. Perhaps you can give an explanation as to your changes. That's why I've added "official plans" to mine.
Mr Klees: The motion replaces "site" with the words "location of the site." This wording clarifies the intent and reinstates similar wording that existed under the Pits and Quarries Control Act. The addition of the word "location" prevents a contradiction between section 66 of the act and subsection 13(5) or the new section 12.1.
The province shouldn't be placed into a position of dealing with matters that are a municipal jurisdiction. It's very important that we retain the position of the province and the act as an override to any circumstances where there may be a conflict with a municipal official plan.
You make the point that there are or may be circumstances where the zoning bylaws are in conflict with an official plan. The licence is issued based on zoning bylaws and it is not up to the province to adjudicate those matters at the municipal level. That's clearly the responsibility of the municipality. We feel it's imperative that we retain the provincial interest and that licences are then issued based on the act itself and the provincial interest.
Mr Michael Brown: All this is really doing is confirming that the zoning for that particular location is appropriate and is what the applicant says it is. Am I understanding this?
Mr Klees: Yes.
Ms Martel: What happens in the event, though, that the end result of issuing the licence is that you have new aggregate extraction which will then be permitted in appropriate areas that were not envisioned in the official plan? Are you saying that's the municipality's problem at that point, not the province's?
Mr Klees: We're saying that the zoning bylaws are going to determine the licensing. If there is a conflict with the official plan and the zoning bylaws, that is beyond our jurisdiction, that's an issue that has to be dealt with at the municipal level.
Mr Michael Brown: That may end up before the OMB.
Mr Klees: It may well. There are recourses there.
The Vice-Chair: I'll put the question then: Shall the amendment carry? All those in favour? Opposed? The amendment carries.
We'll withdraw the next NDP motion. Seeing no further motions to amend section 10 of the bill, I'll put the question: Shall section 10 of the bill, as amended, carry? All those in favour? Opposed? I declare section 10, as amended, carried.
Section 11 of the bill. There's a Liberal motion to amend.
Mr Michael Brown: Do you want to give me just one second?
The Vice-Chair: Sure.
Clerk of the Committee: Sorry. An NDP motion, clause 13(3)(b), should precede that and then an NDP motion, subsections 13(5), (6), (7) and (8), should precede it, and then come back to that.
The Vice-Chair: All right, Mr Brown, you have a few minutes more to think about that one because we first have to entertain the NDP motion dealing with clause 13(3)(b).
Ms Martel: I move that clause 13(3)(b) of the Aggregate Resources Act, as set out in section 11 of the bill, be struck out and the following substituted:
"(b) on the clerk of each regional municipality, county and local municipality in which the site is located."
By way of explanation, my reading of the act that is currently in place is that when a minister issues a licence or at any time wants to add a condition or vary the condition of a licence, the licensee and an affected municipality are automatically served with notice. My amendment would make it clear that the minister's discretion to serve notice on the municipality is not permissible, that in fact, as occurs now, the minister would serve notice for his reasons of a change in the condition of a licence on both the licensee and the affected municipality.
Mr Klees: By way of clarification, it's my understanding that it is not a matter of course now. There is discretion as a matter of policy by the ministry and these matters are broken into major and minor variances. If it's considered a major variance, then yes, there is a formal service as a matter of course, but in the course of any given week there are numerous minor variances that are dealt with on an administrative basis and are not necessarily served.
What we want to avoid here is to lock the ministry into having to serve on all variances. We want to retain the discretion and continue to carry on as the ministry has been doing now. There's no change from the current practice. To incorporate this amendment would, in our view, place undue administrative burden on the ministry.
Ms Martel: Can I just be clear? Do you automatically, though, in every case already serve notice on the licensee regardless if it's a major or minor variance?
Mr Klees: I'll defer to staff on that. I believe so, yes.
Ms Martel: If you're doing that with respect to a licensee regardless of whether the issue is major or minor, why would you not let the affected municipality know? The licensee is getting it regardless, right?
Mr Klees: The licensee is party to the variance and so it follows that they would be served notice. What we're saying is that to burden the system with these additional services would be very cumbersome. It will be done as a matter of course for major issues, but what we're suggesting is that we wouldn't want to tie ourselves to doing that for very minor issues. Again from discussions with staff, quite a few of these things are oftentimes housekeeping. As you're aware, an operation like this is dynamic -- in other words, it's constantly in motion -- and there are always small variances that have to be registered.
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Mr Michael Brown: I have a question, and this is a typically northern question: What happens if this is in an unorganized township? Who is the notice served on? Anybody?
Mr Klees: I'll defer to staff on that.
Mr Pichette: In an unorganized township, the crown plays the role of the municipality, I believe, so it would be basically serving upon itself. If there is no municipality, we cannot serve.
Mr Michael Brown: Wouldn't it be served to a local roads board or a local services board?
Mr Pichette: Yes, that would be considered the local municipality, but in a totally unorganized township I guess you'd have --
Mr Michael Brown: They're not municipalities.
Mr Pichette: Let me ask this question: Are you dealing with crown land or private land?
Mr Michael Brown: It could be either.
Mr Pichette: In a lot of cases with crown land there is no municipality.
Mr Michael Brown: But there are many unorganized townships. I have some that are virtually all private; I have some that are virtually all crown; I have some in the constituency that would be a mixture of both. There are local roads boards. There are local services boards. In the case of a local services board, it is administered with the help of the Ministry of Northern Development and Mines, not MNR. I wonder how it's addressed in those areas, seeing as we just had a discussion this morning about designations. It could be that some of these townships will be designated.
For various reasons, some unorganized municipalities in the north actually have quite a few people in them. It's just a quirk of time, I guess, that they're the way they are, at least at present. I wonder how the ministry intends to deal with those.
Mr Klees: So your question effectively is: What is the current practice? Who are we serving in unorganized townships? Do we know?
Mr Pichette: If it's a significant issue, we try to notify everybody in that township, either through a local roads board or services board or through our own publications. It's a determination on the importance of the amendment that will dictate how far we outreach. That's our practice.
Mr Klees: Would you like to be served yourself?
Mr Michael Brown: Heck, no. It's just that the act doesn't spell it out. So what you're telling me is that this is how it's done in practice.
Mr Pichette: Specifically on crown land, the act does not spell out notification to the municipality, because it's a jurisdictional issue. But as a matter of practice, we still notify the municipality.
Mr Michael Brown: Or what would be the municipality. Okay.
The Vice-Chair: Seeing no further discussion on Ms Martel's motion, I will put the question: Shall the amendment carry? All those in favour? Opposed? I declare the motion lost.
The next motion is also Ms Martel's.
Ms Martel: I move that section 13 of the Aggregate Resources Act, as set out in section 11 of the bill, be amended by adding the following subsection:
"Refusal to change conditions
"(12) Subsections (3), (6), (7), (8), (9) and (10) apply, with necessary modifications, if the minister refuses a licensee's request to add a condition to the licence after its issue or to rescind or vary a condition of the licence."
The Vice-Chair: Okay now, I think we're going to have to back up again because we have a motion, 13(5), (6), (8) and (11), which should come before 13(12).
Ms Martel: I move that subsections 13(5), (6), (8) and (11) of the Aggregate Resources Act, as set out in section 11 of the bill, be struck out and the following substituted:
"Exception
"(5) The minister may take the proposed action before the 30 days have elapsed if comments have been received from all persons notified and if all persons notified waive the right under subsection (6) to require a hearing.
"Entitlement to hearing
"(6) A person who is served with a notice under subsection (3) is entitled to a hearing by the board if the person, within 30 days after being served, serves the minister with a notice that a hearing is required.
"Parties
"(8) The parties to a hearing are the licensee, any other persons who required the hearing, the minister and such other persons as are specified by the board.
"Where no hearing
"(11) If no hearing is required under subsection (6), the minister may carry out the proposal."
The Vice-Chair: Before I ask for an explanation, is everyone all right? I know we've had trouble with the order of these. Thank you. Go ahead, Ms Martel.
Ms Martel: The purpose of the amendment is to ensure that the same rights that the licensee would have under section 14 will also be provided to any other person who might want to object to the changes in the licence. As I read the section that's set out by the ministry now, a licensee can take several forms of action if he or she disagrees with a varying condition of the licence, as set out by the minister, but I did not see where an individual, a resident in a municipality, for an example, could also follow the same process if he or she disagreed with the variance that the minister was making. So it's allowing for not only the licensee to be party to a process of agreeing or disagreeing with the minister's change or varying of a condition, but also affected land owners or affected municipalities.
Mr Klees: I'll give you my response to this. What we're trying to achieve here is to ensure that we don't end up in appeal after appeal after appeal. We're trying to discourage this process by suggesting that once the minister has made his or her decision about a variance, that decision be final. By opening it up, what we're concerned about is that once an application's made, the minister makes the decision to either allow the variance or not, that decision will be made based on technical advice from staff, and ultimately it's the minister's responsibility to make that decision as to whether or not to grant that variance. The buck stops with the minister. To open this process up for further appeal, we just feel, is going to create a very cumbersome process that we're not interested in getting involved in.
Ms Martel: Perhaps my read of the section is wrong. I don't read this as the buck stops with the minister; I read that the licensee, if he or she disagrees with the minister's ruling, can appeal that to the OMB. So my argument is, then, if you allow a licensee to have that right, why would you not also allow an affected municipality or affected land owners who may well disagree with the minister's decision in granting the licence in the first place -- what right of appeal do they have or why is their right of appeal different from the licensee's right of appeal?
Mr Klees: Once an appeal is made to the OMB, anyone can become party to that process. What we're suggesting is that as long as the appeal is made to the minister and the minister has made his decision, we don't want further process at that point. If the licensee isn't satisfied with the minister's response, clearly there are other avenues that the licensee can take up. Anyone who has an interest can then participate in that.
Ms Martel: But the people who have an interest in that wouldn't, as I read it, get the benefit of the same rights of notification, the same rights of serving the minister with a notice that a hearing is required. Why would you have two distinct processes for it?
Mr Klees: Keep in context that what we're talking about here are variances once the licence has been issued. All of the parties that have an interest in the initial issuing of the licences are privy to that process at the front end. So the licence is issued with all of the terms and conditions tied to it. What we're talking about here now is, once the licence has been issued, the licensee comes forward and makes an application for one of those conditions to be varied. The minister then has the responsibility to either agree to or deny that application. It's strictly a technical matter that's being dealt with by the minister at that point. The minister has the responsibility to uphold the terms and the framework within which that licence was initially offered and will not in his or her wisdom vary from that.
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Where some of these variances come into play are on temporary matters that quite frankly are not going to be material to the terms and conditions under which that original licence was issued. There are occasions sometimes when perhaps for a short period of time -- there may be a short-term contract, for example, when a special appeal is made to allow for a minor variance that is not going to override the original premise of the licence being issued. That discretion is within the minister.
Ms Martel: Let me give you this example. What if the minister varies the terms of the licence? The original licence had set operating hours that appeared in the terms of the licence. The licensee, for whatever reason, goes to the minister and indicates that for business reasons or for a project that he's working on he wants the hours of operation removed to be able to bring the aggregate out for a substantial period of time, 24 hours a day. You've got homeowners who disagree with that change in condition, for very legitimate reasons. Why are they not permitted to make their case to the minister in the same way as a licensee would if he or she disagreed? In that case, surely they have some right to disagree; for whatever technical reason, the minister may have already granted those hours of operation to be waived or be dismissed.
Mr Klees: In the real world, that wouldn't happen. In the real world, that kind of substantive variance would simply not be granted by the minister. Where there would be a variance would be on a very short-term basis for a circumstance that is again, as I say, typically -- my information that I have from staff is that these are typically short-term in nature and very minor and would not impinge on the original structure of the licence.
Ms Martel: Here's the problem I have. We just had a case in our office where the licence was granted and there are no hours of operation listed in the licence. It's a 24-hour operation. It's in an unorganized area and the residents have come to see me because they do not believe that that pit should be allowed to operate 24 hours a day. And that was with the granting of the licence. We're not even talking about a variance. It's totally unrestricted. So these folks are going to end up at the OMB. All I'm saying is, I've had it happen with a licence, never mind a variance.
Mr Klees: I'm not familiar with that particular circumstance. Perhaps I'll let staff speak to that and maybe we can flesh some of this out.
Mr Pichette: In that particular case it was obviously not identified as an impact through the licensing process that hours of operation would have to be identified to eliminate or significantly reduce a social or environmental impact. So as a result, the licence was issued. It was never addressed or not brought up through the process. Perhaps now it's seen as a significant impact and can be shown that it is an impact, in which case, the citizens, the ratepayers, would approach the minister and make their case to the minister. If the minister says this is an addition to a condition we should introduce, then the minister would make that proposal, consider it significant, serve upon the municipality and particularly the licensee. In other words, the minister's doing it to the licensee here. Only in cases where the minister there, after the 30-day comment period, would then move on it, but during that 30 days the licensee has an opportunity to refer the matter to the board. That's how that works. That's the only way it works, actually.
Ms Martel: I guess my problem is you're not responding to my concern, which is the minister won't do those kinds of things; even in the original granting of the licence, that's what took place. So when you've got what I would call a major variance, in that case hours of operation being waived, it would seem to me to be a major variance if there are neighbours in close proximity. How do these folks have an opportunity to disagree with that, and why, if I'm reading this correctly, is the way they disagree different than the rights a licensee would have to disagree?
Mr Pichette: I would say that it's not a waiving of the operations. There is no requirement that there shall be hours of operation. It is only used when there is clearly an impact that can be mitigated by introducing hours of operation. The biggest example, of course, is in cottage country, operations not being on weekends because of maybe the noise issues. Clearly, it was not identified as an impact through the process; perhaps it isn't an impact. But the remedy that the ratepayers would have here is to approach the minister with the case that it is an impact and needs to be introduced as a condition. At that time, through the process of notification of both the municipality and the licensee, the licensee has the opportunity to appeal the minister's decision and refer the matter to the board.
The Vice-Chair: Any further discussion? Not seeing any, I will put the question. Shall the amendment carry? All those in favour? Opposed? I declare the motion lost.
The next motion, to amend section 11, is also from the third party, Ms Martel. It's identical to the next Liberal motion and the NDP one came in first, so you lose that battle, Mr Brown.
Ms Martel: I move that section 13 of the Aggregate Resources Act, as set out in section 11 of the bill, be amended by adding the following subsection:
"Refusal to change conditions
"(12) Subsections (3), (6), (7), (8), (9) and (10) apply, with necessary modifications, if the minister refuses a licensee's request to add a condition to the licence after its issue or to rescind or vary a condition of the licence."
The change here would make it clear that the licensee would have the method of appeal that appears through this section if he or she disagrees with the proposal that the minister is putting forward, ie, the changes to the condition of the licence.
The Vice-Chair: Any further discussion on this?
Mr Klees: Our comment is that again, we believe that the minister should bring closure to these appeals. The minister will base his or her decision on facts available to him or her, and to perpetuate appeals we don't believe would be in the public interest.
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The Vice-Chair: Further discussion? Seeing no further discussion, I'll put the question. Shall the amendment carry? All those in favour? Opposed? The motion is lost.
Mr Brown's motion is out of order, as it's identical to the previous one.
Therefore, I will put the question on section 11.
Mr Michael Brown: Don't we have --
The Vice-Chair: We just had that one motion from the opposition party on section 11, so I'll put the question. Shall section 11 carry? All those in favour? Opposed? Section 11 carries.
Next, on section 12 we have several motions to amend, starting with the NDP motion amending section 15.1.
Ms Martel: I move that section 15.1 of the Aggregate Resources Act, as set out in section 12 of the bill, be amended by adding the following subsections:
"Copy for municipality
"(1.1) The licensee shall give a copy of the report to the clerk of each regional municipality, county and local municipality in which the site is located.
"Ministry review
"(1.2) The minister shall give a copy of any review of the report that is prepared by the ministry to each regional municipality, county and local municipality in which the site is located."
The reason for the amendment is as follows: It's very clear that this section replaces what used to be an annual ministry inspection of each of these sites to determine compliance. There's been a great deal said about all of that. Given the fact that we are asking the public to take a leap of faith and put their trust in what the annual compliance report will show, and hopefully it will show that people are operating in compliance, I think it's only fair then that the municipality should be afforded the opportunity to receive a copy of the compliance report from the licensee so they will know what the status is of that particular site. Under the old act, during the ministry inspection I do believe they would have been asked for their comments as well with respect to the particular operation.
It also makes clear that the municipality will be able to receive the MNR review of that particular report so they will understand whether or not the MNR is going to be considering taking any action or agrees and feels that the remedial action will take place in the time that has been outlined by the operator.
I'm moving this because we heard from a number of people who came forward who strongly disagreed with the change that is being made to have operators self-regulate, and I'm looking for some ways and means to ensure that there will be accountability and that the public will have some comfort in what is actually happening under this new process.
Mr Klees: With regard to (1.1), we're in agreement that this should be done. However, it was our intent to do this by regulation and I can undertake to assure you that this provision will appear in the regulations.
With regard to (1.2), the problem we have with the reviews being circulated is that often the reviews will contain information of a confidential nature that may well relate to pending prosecution. As a result, it would be inappropriate for that information to be made public and for that reason we couldn't support (1.2). But, as I indicate, (1.1) will be incorporated into regulations.
Ms Martel: If you are setting out the rules surrounding what the licensee shall do, I guess I don't understand what the problem is to incorporate a section in the act directly that says notification will occur to municipalities. You've got notification provisions for licensees. For example, in the section we just finished, you have a provision for notification for municipalities, again at the discretion of the minister, but you do have that in the section we just finished. I'm just not understanding the reason why you'd have to wait and put that into the reg rather than have it in the act and make it clear that that's going to occur.
Mr Klees: Ms Martel, I'm prepared to accept your amendment and to include this in legislation --
Ms Martel: Thank you. Oh, wait a minute.
Mr Klees: -- as long as you're prepared to withdraw (1.2).
Ms Martel: All I want to know is, is it the exception rather than the rule that a report issued by the ministry would have something of a confidential nature that involved a prosecution? Is that what the nature of the reports are that you expect will come from reviewing people's compliance reports?
Mr Klees: Staff have advised me that it is the rule, typically, that the reviews would contain information that they would feel very uncomfortable about disclosing publicly. You drive a hard bargain, Ms Martel. I offer (1.1) if you withdraw (1.2).
Ms Martel: Let me think.
Mr Klees: Otherwise, we'll throw it into regulation.
Ms Martel: I'll accept it. I just want to say that you have to understand, whether or not this works is going to be very much based on the public's confidence with the whole system.
Mr Klees: We agree with that.
Ms Martel: What I'm trying to do is make sure that the people who are going to be affected, whether they be municipalities or environmental groups or land owners, get that sense of comfort. Otherwise, no matter what the industry does, it's just not going to work and the ministry will be no better off at the end of the day because of that.
The Vice-Chair: Ms Martel, does that mean you'd like to entertain the bargain that was struck? In order to do that, you'd have to withdraw everything from "which the site is located."
Ms Martel: Do you want me to read it into the record again, then, Mr Chair, with the change?
The Vice-Chair: Just say that you would like to delete all the words after "which the site is located."
Ms Martel: Mr Chair, I would like to delete the subsection that begins, "Ministry review," subsection (1.2), "The minister shall give a copy of any review..."
The Vice-Chair: Do all members of the committee follow that, then, that everything from "Ministry review" inclusive downwards is withdrawn? Any further discussion on that motion? Seeing none, I'll put the question. Shall the amendment, as amended, carry? All those in favour? Opposed? I declare the amendment, as amended, carried.
The next motion to discuss is a government motion on 15.1(4).
Mr Klees: I move that section 15.1 of the Aggregate Resources Act, as set out in section 12 of the bill, be amended by adding the following subsection:
"Disclosure of contravention
"(4) If an annual compliance report discloses a contravention of this act, the regulations, the site plan or the conditions of the licence,
"(a) the licensee shall,
"(i) within a period of 90 days after the report is submitted to the minister or within such longer period as may be specified by the minister, take such steps as may be necessary to remedy the contravention, and
"(ii) immediately stop the doing of any act that forms part of the contravention; and
"(b) if the licensee complies with subclause (a)(ii), no prosecution shall be commenced in respect of the contravention, and no notice may be served by the minister under section 20 or 22 in respect of the contravention,
"(i) during the period described in subclause (a)(i), or
"(ii) after the period described in subclause (a)(i), if the licensee complies with subclause (a)(i) within that period."
I'd like to point out that --
The Vice-Chair: One moment, please, Mr Klees. While reading the amendment, in part (4)(a)(i), the second-last line, the word that I have on the motion is "stop" and I believe you used the word "remedy" there.
Mr Klees: I did, and I wanted to alert you to the fact that I did make that change. That was a typographical error.
The Vice-Chair: Does everyone have that change, (4)(a)(i), the word "stop" has been changed to "remedy"?
Mr Klees, do you want an explanation of the amendment?
Mr Klees: This is to require the immediate cessation of any prohibited activity that's identified in the annual compliance report and to confer a period of immunity from prosecution while a contravention is being remedied. It gets back to the principle of self-incrimination that we had some discussion about earlier. I think it's important that we give the confidence to the industry who are participating in this self-compliance that while they make their report, they recognize they will have a reasonable period of time within which to bring their operations into compliance and in light of the fact that the compliance reports will be of a public nature, it's very possible for a third party to step to the plate and bring charges. We want to ensure that that doesn't happen, that there is that reasonable period of time for compliance.
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The Vice-Chair: Any further discussion?
Mr Michael Brown: I understand the reason for this and I'm in sympathy with the reason for this. I do, however, have some difficulty, and perhaps it's just conceptual, that when we use the hours-of-operation thought, where someone is not complying with the stipulation of hours of operation, do we really want to give them 90 days before they have to comply?
Mr Klees: They have to stop immediately from the time the non-compliance is noted. If you take a look at (4)(a)(ii), "the licensee shall...immediately stop the doing of any act that forms part of the contravention," so while we're in that period of time, there's an onus on the operator to cease any contravention of the licence.
Mr Michael Brown: So what you're really concerned about with the 90 days is something physical in nature that you would have to -- okay.
Ms Martel: Would that 90 days kick in after the date that was set on the report which indicates that remedial action will have taken place? What I'm trying to get at is, you're going to have people sending in reports and they will indicate, "I'm going to be able to get my fence up a month from now." Are we talking about a 90-day grace period after the date that they've indicated they will be in compliance or is that from the day the report lands on your desk?
Mr Klees: It's from the day the report is submitted.
The Vice-Chair: Any further discussion? Ms Martel, I'll just alert you to the fact that your next amendment would be out of order if this carries. Seeing no further discussion, I'll put the question. Shall the amended amendment carry? All those in favour? Opposed? I declare the amended amendment carried.
The next amendment proposed by the NDP is out of order as it would conflict with the one the committee just approved. So we move to a Liberal motion, which is similarly out of order for the same reason.
Mr Michael Brown: Which one is that?
The Vice-Chair: Your section 12 of the bill, subsections 15.1(4) and (5) of the act.
Mr Michael Brown: I don't believe it would be out of order.
The Vice-Chair: Okay, that's fine. Go ahead, Mr Brown, and read that.
Mr Michael Brown: I move that section 15.1 of the Aggregate Resources Act, as set out in section 12 of the bill, be amended by adding the following subsections:
"Suspension of licence
"(4) A licence may be deemed to have been suspended if,
"(a) the licensee fails to submit an annual compliance report in accordance with this section;
"(b) the licensee submits an annual compliance report that contains false information; or
"(c) the licensee's annual compliance report discloses a contravention of this act, the regulations, the site plan or the conditions of the licence and the licensee fails to take such steps as are necessary to stop the contravention within the period specified in the report.
"Reinstatement of licence
"(5) A licence that is deemed to have been suspended under subsection (4) shall be deemed to have been reinstated if, as the case may be,
"(a) the licensee submits the annual compliance report to the minister;
"(b) the licensee corrects the false information that was contained in the annual compliance report; or
"(c) the licensee takes such steps as are necessary to stop the contravention that was disclosed in the annual compliance report."
The main issue we have here is the reinstatement of the licence, that if you've taken the corrective measures, the licence will be reinstated at the earliest possible moment. I believe that's consistent with what you're trying to achieve. It's my experience that occasionally this does not happen for logistical reasons within any enforcement agency. That's what we are trying to correct or to ensure on behalf of everyone, that if the operator is in compliance, the operator can operate. I think it's rather simple but it can cost people a huge amount of money and a lot of time and a lot of grief if the ministry, for whatever reason, cannot logistically come out and verify that this in fact is happening.
Ms Martel: I believe that our amendments are the same. I want to speak to the top section, though. Clearly, during the course of the public hearings, the producers themselves told the committee that the penalties for non-compliance around the issue of the report should be made very clear and very transparent to people. Even though I tried going through the act to sort out where and when the occasion would warrant a suspension of a licence, I didn't find that it was clear enough to say that the following three conditions, if they are not met, will result in an immediate suspension of the licence.
So you'll notice that the three areas that we have highlighted actually came from the aggregate producers' presentations. You could say that we're moving it forward on their behalf. We want to make it clear, and I think that they do, for the public as much as anyone else, that the operators are serious about this obligation. Anyone who is undermining in any way, shape or form the annual compliance report is going to suffer a very swift and immediate penalty, which will be suspension of the licence. So part of the reason I moved it was to make very clear that the penalty was very transparent to everyone and the reasons for a suspension being imposed were very clear to everyone as well.
Mr Klees: We don't disagree in principle with what you're trying to do here at all. I agree that it's central to self-compliance and to this process to work that it's clear there are consequences to not complying. We like what this says; the problem I've got is that we have been advised by legal counsel that they're concerned that there would be difficulty in enforcing this particular amendment the way it's written. I'm taking advice from people who should know these things; I'm not a lawyer. I can tell you that the intent of what you're trying to achieve here is not contrary to what we would like to have happen, but we do have a problem in incorporating something into legislation that we have advice on from legal counsel that it's questionable that it could be enforced.
Ms Martel: Can I ask then, as a matter of clarification, is the difficulty around enforcement with respect to the provisions for the suspension of the licence or the reinstatement of the licence, or is it both?
Mr Klees: I'll ask legal counsel to comment on that.
Ms Linttell: I guess our major concern is the lack of due process and the concept of no notification of a suspension. What we're into is a system of self-sanction to back up a self-assessment of compliance. I guess I'm having some difficulty in grasping the concept and walking it through in terms of the implications. We're all having difficulties in determining exactly --
The Vice-Chair: Excuse me. Can you just lean forward a little bit? Hansard's not picking up.
Ms Linttell: I'm sorry -- having some difficulty in attempting to assess how this will aid compliance. On the one hand, one can argue that the fact that there is a deemed suspension where failure to file the compliance report on time -- for instance, filing it a day late -- automatically puts that operation in suspension and requires the operator to literally lock his gates. It's a pretty frightening sanction.
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What's the upshot? I suppose we would have knowledge in terms of a list of these compliance reports have not been submitted and therefore all of these operations are in suspension. I know I'm not being very clear, but I think it reflects the difficulty that we're having in coming to terms with how effective this will be.
I understand your point with respect to ensuring that the suspension is lifted once there is compliance, but that can be accommodated, I think, without going the step of the deemed suspension on failure to do certain things. I understand also that this is an attempt to remove arbitrariness from the process because there has been an unevenness in the application of sanctions, and I understand that completely. But on the other hand, you're creating another type of arbitrariness in that undue hardship can be created by virtue of not being able to give any relief where there is a reasonable excuse for the one day late. That's a concern.
Also, in analysing this, we've had some difficulty with the false information in the report. Again, is it false due to mistake, was it an intentional effort to mislead, those kinds of things? Again, the imposition of the sanction, which is quite severe. If anything, we would perhaps be prepared to consider stepping away and moving it to a more objective basis. Failure to file the report, failure to carry out the remedy that's identified within the specified period of time: At least those are objective.
We're also thinking in terms of the next step since an operator, for instance, who ignores this and continues to operate while he is deemed to be in suspension as a result of the operation of the statute is then subject to further sanction by way of charges. The difficulty in formulating a charge where there is literally no paper in the sense of evidence and in particular the false information one gives us some particular discomfort in that respect. At least if you fail to file, we can establish that we did not receive it on the 30th; we received it a month late. At least that can be established. Those things are provable. Those are the kinds of considerations that are creating some reservations.
Mr Michael Brown: I'm even more confused than I was before. It seems to me that the backbone of this legislation was strong sanctions for non-compliance and that there was to be no debate about whether a suspension would be issued if there was a contravention. There was to be no debate. So it would seem to me that if the report was a day late, the suspension would be happening immediately. That's why I wasn't, when I discussed it, very concerned about the deemed part because I understood it to be what was going to happen. There is going to be no discretion. Either it's in on the 30th or it isn't. If it isn't, you're suspended.
Mr Klees: Mr Brown, as I indicated, we don't have a disagreement on that. What we're trying to do is find some way to deal with this so that it's effective and enforceable.
Can I make a suggestion? There may be a compromise here. I think the clause that's giving us some problem is 4(b), "the licensee submits an annual compliance report that contains false information." I'd be willing to accept this amendment if you were willing to withdraw that clause. What that would allow us to do is be specific. It would give us (a) and (c), which would then become (b), which are measurable factors that we can enforce, that are tangible. I think it helps us out with the problem that we're facing.
Mr Michael Brown: I appreciate it. I'm quite willing to eliminate (b) in both sections. I presume you also want it eliminated in the section above. How do I do that, Mr Chair, so that we --
The Vice-Chair: Ms Martel -- just let her make some comments.
Ms Martel: I could say to the parliamentary assistant that he's making a case as to why he should continue to have ministry inspections, but let me say that that will move us some way and probably give some comfort to both the producers who are concerned about and frankly a lot of the people who are concerned about whether or not this whole process is going to work. So if we can get that far, that would be a step ahead of where we are now. I'll agree to that.
The Vice-Chair: In order to do that, Mr Brown, you have to --
Mr Michael Brown: Shouldn't I just reread it? Wouldn't that be faster?
The Vice-Chair: No, just delete all the words in (4)(b) and (5)(b).
Mr Michael Brown: I will delete from my motion clause 4(b), "the licensee submits an annual compliance report that contains false information; or" and I will delete clause (5)(b), "the licensee corrects the false information that was contained in the annual compliance report; or." The renumbering I guess happens automatically.
The Vice-Chair: Yes. Any further discussion on this? Seeing none, I will put the question. Shall the amendment, as amended, carry? All those in favour? Opposed? I declare the amendment carried.
That wraps up section 12, so I would like to ask, shall section 12, as amended, carry? All those in favour? Opposed? I declare section 12, as amended, carried.
Seeing as it's 6 o'clock, we will now adjourn until Thursday at 10 am.
The committee adjourned at 1757.