2005
 
GOVERNMENT AND GOVERNANCE 
The following article was contributed by Keith Old of Bishop Phillips Consulting Canada and discusses the Australian experience in the interplay between Governments and the governance of institutions of higher education in Australia. Keith has worked for the past 10 years consulting to Australian higher education institutions in the area of Governance and assisting them adhere to the protocols by which the Australian Federal government regulates the institutions it supports. Good governance initiatives within the Australian higher education sector are largely driven by Federal Government initiatives rather than by initiatives from the States and Territories (equivalent to the Provinces), as is the case in Canada. In Canada over 90 higher education institutions are the responsibility of Provincial Governments, which control use of the term "university". Each Provincial Government has its own quality assurance mechanism, and to date there is little coordination between the Provinces of these mechanisms. There is no formal national recognition system of accreditation or recognition for post -secondary institutions, although some influential provinces are beginning to concert their efforts in this area. In Australia 36 universities and higher education institutions are established by State or Territory legislation but are publicly funded by the Australian (Federal) Government. The legal ownership of these universities lies with the respective State or Territory Government. In essence, every Australian university must be mindful of requirements coming from both Federal and State Governments. By virtue of being statutory bodies established under State and Territory legislation, they have accountability requirements imposed by the State and Territory governments. In addition, they also have accountability requirements imposed by the Federal Government, the single most important source of their revenue. In recent times, the Federal Australian Government has become much more active in its enforcement of good government principles within universities that it funds. In a policy statement in 2003 (Our Universities: Backing Australia’s Future), the Federal Government tied funding increases under the Commonwealth Grant Scheme (CGS) to adherence to a set of National Governance Protocols (NGP) and developed a well-defined framework (the Institution Assessment Framework) for monitoring and assessing universities’ performance to the NGP. Actually, funding increases under the CGS are conditional on adherence to the NGP. Principally, the Federal Government is enforcing adherence in the following areas: Organizational sustainability – The Federal Government wants assurance that universities will be able to continue delivering the services it is funding. The NGP lay down specific requirements designed to ensure that:
Achievements in higher education provision – Universities have delivered the required number of student positions offered each year in accordance with the Government’s higher education objectives in the following areas:
Quality of outcomes - As well as quantity, that Universities have met predefined quality standards for their systems and processes, in teaching and learning programs and research. Universities must be prepared to undergo Australian Universities Quality Agency audits. Compliance – Ensuring that institutions have used their funds for the purposes for which they were provided and have complied with legislation. Universities must demonstrate the measures that they have in place to comply with the various pieces of applicable state and federal legislature. This covers all legislated areas, including financial, occupational health and safety, dangerous goods, workplace equity etc. The NGP also stipulate that universities must submit an annual report containing audited financial statements, performance information, compliance data and information on specified financial and/or business dealings. The reporting framework may mandate that such matters as occupational health and safety, freedom of information requests, referrals to the ombudsman, and other aspects of a university’s operations are to be included in the report. Adherence to the NGP puts universities in conflict with their respective States. Some specific State requirements for statutory authorities have been found to be in conflict with the requirements of Australian Government guidelines, in relation to universities. For example, the Australian Government issues a set of guidelines for the preparation of annual financial statements by universities. In particular, the timeline for preparing audited financial statements differs between jurisdictions. Universities in particular States have had their financial statements qualified by their State Auditor-General as a result of complying with Australian Government requirements, whilst institutions in other States have not. Despite such issues and the reporting workload imposed by the NGP, there has been a net positive effect on governance within the Australian higher education sector. All universities have taken action to improve their internal governance processes. A review of Australian university websites will reveal that they now all have risk management and compliance programs in place to some degree. Additionally, State and Territory Governments have agreed to make the necessary legislative changes in order to allow universities within their jurisdictions to comply with the NGP. Keith Old, CEO
COLLEGES, INSTITUTES AND UNIVERSITY FOUNDATIONS NOT REQUIRED TO COMPLY WITH MUNICIPAL LAND USE REQUIREMENTS
Who rules the roost, when it comes to the use and development of land owned by the Province and crown agents? The Province, or municipalities? Section 14(1) of the Interpretation Act makes the government subject to legislative enactments, unless the enactments provide to the contrary. Section 14(2) of the Interpretation Act states that "an enactment that would bind or affect the government in the use or development of land or in the planning, construction, alteration, servicing, maintenance or use of improvements, as defined in the Assessment Act, does not bind or affect the government." So, the answer is: The Province and crown agents rule the roost, if they want to, based on section 14(2) of the Interpretation Act . Back in 1974, this debate took place in the BC legislature: "Mr. Wallace: Mr. Chairman, section [now 14(2) of the Interpretation Act] seems to me to be the most devastating part of this whole bill. I would like to know whether I read the section [14(2)] correctly, but anyone reading plain English would gather from section [14(2)] that, in fact, the government of this province is excluding itself completely and totally from any obligation to meet all the very important and serious pieces of legislation we've put through this House in relation to the use and development of land. … This section, Mr. Chairman, seems to exclude this government completely from all the provisions, for example, of Bill 42. The general, wide language which is used in [section 14(2)] would seem to me to make a mockery of all the municipal legislation we have in this province. As I read section [14(2)] it would give this government the power to completely ignore or overrule any piece of municipal legislation in any of our municipalities, regarding the use or development of land. The planning, construction, alteration, servicing, maintenance or use of improvements, as found in the Assessment Act, do not bind or affect the Crown. …Now I understand that already this kind of provision is enjoyed Hon. Mr. Hall: Mr. Chairman, I want to make just one simple statement about this section - which is all that is required. This section puts the government in exactly the same position that the previous government was in … - exactly the same position that this government was in in 1972, exactly the same position that this government was in in 1973, exactly the same position the government was in until the passage of the Statute Law Amendment Act in the spring session of this year … The things that you said are available to this government have been available to the government of British Columbia for at least the last 20 years. What we are doing is saying that in this section those powers should be restored to the Crown."Section 14(2) of the Interpretation Act survived this debate, and remains in force today. So, because British Columbia Transit is an "agent of the Crown", when Skytrain was being constructed through multiple municipalities, the GVTA did not have to get building permits in multiple municipalities or hold public hearings for zoning approvals in multiple municipalities. And when British Columbia Buildings Corporation wants to develop a new building in the City of Vancouver (for example, the Law Courts in the 70’s), they don’t need to get a City building permit. As an incidental benefit, they don’t have to pay development cost charges either, if they don’t want to. Development cost charges are triggered by applying for a building permit. If you don’t apply for a building permit (‘cause you don’t have to), then you don’t have to pay development cost charges either, unless you chose to do so voluntarily. Why is this of interest to our readers? Well, as many of you know, pursuant to section 50 of the College and Institute Act, colleges and institutes are "agents of the Crown", and pursuant to section 3 of the University Foundation Act, the foundations for the universities (The UBC Foundation, SFU Foundation, Foundation for UVic, UNBC Foundation and Royal Roads University Foundation) are also "agents of the Crown". Gets you thinking, doesn’t it? It’s one thing to voluntarily comply with reasonable requirements administered by a local government. It’s another thing when local governments attempt to command requirements that are onerous and overreaching (which, in my experience, they are not shy about doing, now and again). Within municipalities, there is a pervasive expectation that everyone dealing with them will just accept that "you can’t fight City hall", and will do as they command. Most private developers have no choice but to labour under this regime. Crown agents don’t have to. As everyone knows, Municipalities often exact a pound of flesh from private owner and developers – effectively saying "you can’t get your development permit unless you" dedicate open space, or build a daycare, or build rental housing, or widen the street, or, in the building we work in (HSBC Bank Building, Hornby and Georgia, Vancouver), construct an atrium with a swinging pendulum to host a prescribed number of art exhibits and other public events throughout the year. We all enjoy the benefits of these amenities, and I appreciate the good that local governments do – but, when it comes to crown land and crown agents, it is a matter of who assigns the priorities. If left to the local governments, we might get more swinging pendulums and less college classrooms or student residences. When the legislature gave municipalities the power to regulate land use and development, through section 14(2) of the Interpretation Act, they (for good reason, I would say) reserved to the Province and crown agents the right to regulate themselves. Roy Nieuwenburg is the Co -Chair of the Higher Learning Practice Group and advises colleges, institutes and universities on procurement and construction matters. For further information, contact Roy at ran@cwilson.com.
STUDYING IN CANADA
International student programs are important to many of BC’s institutions of higher learning. International students typically pay the full cost of their programs of study. In addition, many international students choose to stay in Canada, contributing their skills to the Canadian economy. The following paper discusses legal issues in relation to international students who wish to study in Canada as well as students who wish to work during their studies or after graduation. IN GENERAL Applicants who are not Canadian citizens, permanent residents of Canada or a family member of a foreign representative accredited to Canada or a member of the armed forces of a country that is a designated state for the purpose of the Visiting Forces Act, must obtain a study permit to study in Canada. SHORT TERM STUDIES A study permit is not needed for any program of study that is six months or less that can be completed within the period authorized upon entry into Canada. However, if the student’s program of study is six months or less but the student intends to continue his or her studies in another program, he or she should apply for a study permit before coming to Canada. This will allow the student to apply to extend his or her stay as a student from within Canada. Otherwise, if the foreign national does not hold a study permit, he or she will have to apply for one outside Canada. REQUIREMENTS The applicant must meet the requirements of the Immigration and Refugee Protection Act and Regulations and the stay must be temporary. The applicant must also:
The applicant will be required to submit an Application for a Study Permit (IMM1294) as well proof of acceptance, proof of identity and proof of financial support. WORK OPPORTUNITIES FOR FOREIGN STUDENTS Working on Campus The applicant may work on campus without a work permit if he or she is engaged in full -time studies at a Canadian university, a community college, a CEGEP, a publicly-funded trade or technical school or a private institution authorized by provincial statute to confer degrees; andpossesses a valid study permit. Working Off-Campus The off-campus work program will allow foreign students at publicly-funded post-secondary educational institutions to work off-campus while completing their studies. Publicly-funded post-secondary educational institutions are:
Off -campus work is an option for students studying at such institutions in provinces that have signed agreements with Citizenship and Immigration Canada ("CIC"). These provinces currently are Nova Scotia, Quebec, Manitoba and New Brunswick. The Department is also negotiating memoranda of agreement with other interested provinces and territories in order to make the option of off-campus work more widely available.CIC has advised that the funding for this program has yet to be approved by Parliament. The Department nevertheless continues to negotiate with provinces and work on the details and the logistics of this program, which will be implemented as soon as funding is confirmed. Meanwhile, work off -campus is only available in those provinces with off-campus pilot projects (i.e. Quebec, Manitoba and New Brunswick).To be eligible for an off -campus work permit, an applicant will have to:
have been a full be in good academic standing; and sign a form authorizing the institution, the province and CIC to share his or her personal information. Co -op and Internship ProgramsFor some academic programs, work experience is part of the curriculum. Foreign students who wish to participate in a co -op or internship program must apply for a work permit.To be eligible for a work permit, the following conditions must be met:
Post -Graduation EmploymentThe post -graduation work program is designed to provide graduating students with Canadian work experience in their field of study. Since May, 2005, this program has allowed certain students to work for up to two years after their graduation. Previously, students were only allowed to work for a term of one year.However, the work permit cannot be valid longer than the length of time the student had studied. (For example, students graduating from a four -year degree program may be eligible for a one-year work permit or, if they meet the criteria, a two-year work permit. Students graduating from an eight-month certificate program would only be eligible for a work permit of eight months.)To obtain a work permit that is valid for one year or less after graduation, the applicant must have:
studied full completed and passed the course of study or program and received a degree, diploma or certificate; applied for a work permit within 90 days of receiving written confirmation (transcript, official letter from the institution, etc.) from the institution indicating that the applicant has met the requirements of his or her program; a job offer from an employer for a job that is related to his or her field of studies; and a valid study permit when he or she applies for the work permit. In order to apply for a work permit of up to two years after graduation, the applicant must meet all of the criteria above. In addition, he or she must have:
received written confirmation (transcript, letter, etc.) from the educational institution indicating that he or she has met the requirements of the program of study; studied at and graduated from an institution located outside of the Communauté found employment outside of the CMM, GTA or GVRD. If you have questions regarding immigration requirements in relation to advanced education, contact the authors of this article, Ken Ing (kki@cwilson.com) or Ron McKay (rem@cwilson.com). TRADES TRAINING CONSORTIUM OF BRITISH COLUMBIA
Skilled trades people are vital to the economy of British Columbia and many believe that there will be a shortage of skilled trades persons in the near future. As the population ages, more skilled trades persons are retiring and there are not enough people trained to step in and take their places. A number of initiatives have been undertaken to meet this challenge, such as the government’s creation of the Industry Training Authority as the governmental agency responsible for overseeing and developing the trades training system in British Columbia. The Industry Training Authority co -ordinates with industry, students and educational institutions to ensure trades training meets current market needs as well as to plan to ensure that those needs continue to be met in the future.The province’s leading post secondary educational institutions have also taken steps to meet the trades training challenge. They have joined together to create the Trades Training Consortium of British Columbia to promote trades training in British Columbia. The Trades Training Consortium of British Columbia is a not for profit society which will work with industry, government, other educational institutions and the public to raise the profile of trades training issues and to promote the skilled trades. The Trades Training Consortium of British Columbia and the Industry Training Authority intend to work together to ensure that skilled trades persons are trained and available to meet the future needs of industry in British Columbia. The members of the Trades Training Consortium of British Columbia are: British Columbia Institute of Technology, Camosun College, Capilano College, the College of New Caledonia, the College of the Rockies, Kwantlen University College, Malaspina University College, Northern Island College, Northern Lights College, Northwest Community College, Okanagan College, the Private Post -Secondary Education Commission, Selkirk College, Thompson Rivers University, University College of the Fraser Valley and Vancouver Community College.If you have any questions regarding the Trades Training Consortium of British Columbia, please contact Brock Johnston at rbj@cwilson.com or Andrea East at ame@cwilson.com. Brock and Andrea are honoured to have helped with the incorporation of the Consortium. CLARK WILSON LLP LAUNCHES RSS FEEDS
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