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129 Leave of Absence Tuesday, April 13, 1999 SENATE Tuesday, April 13, 1999 The Senate met at 1.30 p.m. PRAYERS [MR. PRESIDENT in the Chair] LEAVE OF ABSENCE Mr. President: Hon. Senators, leave of absence from today’s sitting has been granted to Sen. Philip Marshall from April 13, 1999 and continuing. SENATOR’S APPOINTMENT Mr. President: Hon. Senators, I have received the following communication from His Excellency, the President of the Republic of Trinidad and Tobago: "THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO By His Excellency ARTHUR N.R. ROBINSON, T.C., O.C.C., S.C., President and Commander-in-Chief of the Republic of Trinidad and Tobago. /s/ Arthur N.R. Robinson President. To: MRS. NIRUPA OUDIT Senator Philip A.F. Marshall is incapable of performing his functions as a Senator by reason of his absence from Trinidad and Tobago: WHEREAS NOW, THEREFORE, I, ARTHUR N. R. ROBINSON, President as aforesaid, in exercise of the power vested in me by section 40(2)(c) and section 44 of the Constitution of the Republic of Trinidad and Tobago, do hereby appoint you, NIRUPA OUDIT, to be temporarily a member of the Senate, with effect from 13th April, 1999 and continuing during the absence from Trinidad and Tobago of the said Senator Philip A. F. Marshall Given under my Hand and the Seal of the President of the Republic of Trinidad and Tobago at the Office of the President, St. Ann’s, this 1st day of April 1999.” 130 Oath of Allegiance Tuesday, April 13, 1999 OATH OF ALLEGIANCE Senator Nirupa Oudit took and subscribed the Oath of Allegiance as required by law. PAPERS LAID 1. Financial Statements of the Trinidad and Tobago Export Trading Company Limited for the year ended March 31, 1997. [The Minister of Public Administration (Sen. The Hon. Wade Mark)] 2. The Eleventh Annual Report of the Integrity Commission of the Republic of Trinidad and Tobago for the year, 1998. [Hon. W. Mark] 3. Report of the Auditor General of the Republic of Trinidad and Tobago on the accounts of the San Fernando City Corporation for the year ended December 31, 1990.The Minister of Finance [Sen. The Hon. Brian Kuei Tung)] 4. Report of the Auditor General of the Republic of Trinidad and Tobago on the accounts of the San Fernando City Corporation for the year ended December 31, 1991. [Hon. B. Kuei Tung] 5. Report of the Auditor General of the Republic of Trinidad and Tobago on the accounts of the Trinidad and Tobago Racing Authority for the year ended July 31, 1994. [Hon. B. Kuei Tung] NATIONAL INSURANCE (AMDT.) BILL Bill to amend the National Insurance Act, Chap. 32:01 [The Minister of Finance]; read the first time. Motion made, That the next stage be taken at the next sitting of the Senate. [Hon. W. Mark] Question put and agreed to. OLD AGE PENSION (AMDT.) BILL Bill to amend the Old Age Pension Act, Chap. 32:02 [The Minister of Social and Community Development and Minister of Sport and Youth Affairs]; read the first time. Motion made, That the next stage be taken at the next sitting of the Senate. [Hon. W. Mark] Question put and agreed to. 131 Public Assistance (Amdt.) Bill Tuesday, April 13, 1999 PUBLIC ASSISTANCE (AMDT.) BILL Bill to amend the Public Assistance Act, Chap. 32:03 [The Minister of Social and Community Development and Minister of Sport and Youth Affairs]; read the first time. Motion made, That the next stage be taken at the next sitting of the Senate. [Hon. W. Mark] Question put and agreed to. LAND ACQUISITION The Parliamentary Secretary in the Ministry of Housing and Settlements (Sen. Carol Cuffy Dowlat): Mr. President, I beg to move the following Motion standing in the name of the Minister of Housing and Settlements: Be it resolved that this House approve the decision of the President to acquire the land described in the Appendix for the public purpose specified. Mr. President, this Senate is being asked to approve the decision of the President to acquire two parcels of land together comprising 150.1 square metres, more or less, situated on the southern side of the Eastern Main Road, Valencia, approximately 40 metres east of the 22 1/4 mile mark, in the ward of Manzanilla, county of St. Andrew and said to belong now or formerly to Mrs. Fay Kangalee. Mr. President the subject acquisition is at the request of the Minister of Works and Transport and is required for a public purpose namely, the realignment of the Valencia River to alleviate flooding. In response to a spate of complaints from residents in the Valencia area of severe flooding, the Ministry of Works and Transport undertook to realign the Valencia River, utilizing two parcels of land said to belong now or formerly to Mrs. Fay Kangalee. In view of the urgent action which is necessary to carry out remedial works as well as the severity of the flooding, publication of sections 3 and 4 of Legal Notices as required in the Land Acquisition Act, No. 28 of 1994 to enter on lands subscribed was, in fact, overtaken by physical works which were initiated in 1990. Mr. President, the project having been completed has, in fact, alleviated the flooding problem to the extent that the residents, including Mrs. Kangalee, has expressed their delight and satisfaction. More detailed information on the two parcels of land together comprising 150.1 square metres said to belong to Mrs. Fay 132 Land Acquisition Tuesday, April 13, 1999 [SEN. CUFFY-DOWLATT] Kangalee can be obtained on a survey plan filed in Book 1140 folio 192 in the vault of the Lands and Surveys Department, Red House, Port of Spain. Mr. President the procedure for the acquisition of lands for public purposes is standard, and we have brought these arrangements before this honourable Senate from time to time. On this occasion we are indeed honoured to expedite the process and I beg to move. Question proposed. 1.40 p.m. Sen. Nafeesa Mohammed: Mr. President, from time to time we are asked in this Chamber to approve applications to acquire lands for various purposes and this afternoon the hon. Senator made mention of the fact that these two parcels of land are being acquired from Mrs. Kangalee. One of the immediate concerns which came to mind with this Motion is—the Senator had made mention of the happiness of the lady—whether this lady has, in fact, been compensated for this acquisition. As you know, from time to time, especially in relation to land acquisition matters, we are aware of the fact that this system tends to be a rather lengthy process and it is because of the problems being experienced over the years in terms of compensation for land acquisition that the former People's National Movement government initiated the passage of the Land Acquisition Act, which I think was supposed to have been implemented just as the UNC administration came into Government. We on this side are certainly concerned about whether people are receiving their compensation as required under the Act and whether, in fact, the system is being speeded up. The hon. Senator talked about expediting the process. At the end of the day the people from whom lands are being acquired are the bottom line of the matter. They have no choice when the state wants to acquire property, there is no alternative once the procedures are followed through—whether it is to publish or what have you—but at the end of the day, it boils down to a question of compensation for these lands and we are very concerned about the matter and would like to know more about this aspect of it. Mr. President, looking at the purpose for which the lands are being acquired, the Appendix to the Motion refers to the “Realignment of the Valencia River to alleviate Flooding” and immediately when I saw this it raised concerns for me. I know for a fact that not too long ago the same Ministry of Works and Transport, 133 Land Acquisition Tuesday, April 13, 1999 which the hon. Senator pointed out had requested that these lands be acquired for realignment of the Valencia River, authorised some realignment of a particular river and it resulted in the worst flooding ever experienced in more than 30 years in a very large area of our country. In terms of the nature of the work being carried out, I remember just about two weeks ago driving through this area. From time to time, I am sure many Senators have passed through this Valencia area and for the past two or three years some work has been going on. There is a particular bridge in that area just over that river and one of my colleagues I remember, more than two years ago, had highlighted the problem where there was a major accident at that bridge and another person had lost his life, and the fact of the matter is some work had taken place. I see a new piece of road is being built and I am concerned about the quality of the work that is being done, not just with respect to the road, but certainly with respect to the realignment of the river works, because we know what has been happening with the Solomon Hochoy Highway with the kind of work that is being done. With respect to the Valencia River, there is another matter of concern which I need to raise in this particular area and it is a matter that I would urge my colleagues on the other side to please investigate. I understand in that area very near to the river, there is a sewer plant located somewhere in the vicinity of where this land acquisition is taking place and over the last few weeks, raw sewage has in fact been filtering into that river. This is a matter of great concern because there are people living in the area. It can in fact be a health hazard and I would certainly ask the Government to please investigate this matter and see if it is in fact so, and what steps can be taken to alleviate this particular problem. It is a matter which needs to be investigated. Mr. President, in terms of the acquisition of these lands in order to realign the Valencia River, we on this side certainly have no problems in supporting the Motion, but we are hopeful, or at least we would have liked to have heard when the hon. Senator was presenting the Motion, that the lady had, in fact, been compensated because this is the machinery which we left. The general procedures had been established. It is a question of implementation and we would like to know what the Government is doing in terms of this issue of compensation of persons with respect to land acquisition matters. Thank you. 134 Land Acquisition Tuesday, April 13, 1999 Sen. Dr. Eastlyn Mc Kenzie: Mr. President, I have one or two questions for the hon. Senator. She knows my pet questions about lands in Tobago and how many more persons have been paid. I have been promised a reply so I am not going to hit that very much. What I want to find out about this particular acquisition is if the land has been valued; what is the cost of it, and whether Mrs. Kangalee has been paid. If she has not been paid, how soon can she expect payment? That is all I have to ask. Thank you. Sen. Mahadeo Jagmohan: Mr. President, thank you for the opportunity for a brief intervention in the Motion before the Senate. It is not unusual for motions of this nature to come to this Senate for approval. This actual acquisition has already taken place, I presume, but what we are required to do here is to ratify the acquisition at this level. Mr. President, we have heard from the leader of this section of the Senate that we do not seem to have any great difficulty in terms of the policy to support this Motion, but it seems to me on the basis of what is said on this Appendix, that another document which should have come with this is not there. The plan which should have been appended to this Order Paper and this description of land is not here. This is my understanding. Except I am told otherwise, it appears that this acquisition is going to be within the new piece of law that was passed recently in the Senate. My colleague already alluded to a very dangerous situation which we have been advised exists around that area of the Valencia River in that location. An appeal was made for an investigation and some corrective measures, if and when necessary. It is hoped that this idea would be given priority over other considerations in that project, because information reaching us is that people bathe in that area of the river almost on a daily basis and they are actually seen to be enthusiastically frolicking in the waters which we are told are loaded with bacteria which is dangerous to human life. Like I said before, this is the report we have from our usually reliable sources, but the Government ought to investigate this matter and make a public statement on it. The people do not know what they are doing and immediately some kind of notice or precautionary measure should be established so that people may stay away from that area. A term is used here, Mr. President—the realignment of the river—we would like to know whether this realignment referred to is going to change the course of 135 Land Acquisition Tuesday, April 13, 1999 the river or is it going to be realigned in a straight line from point to point. We do not know and the reason for asking whether it would be realigned on a straight path from point to point is to find out to what extent people would be affected. When I say people, I mean people whose homes are in the way, people whose gardens and farms fall in the way. This has to be explained to us some time before the Motion is finally approved. Going a little further, perhaps we could serve notice or remind the Government that reference was made to a very important project. The name was not mentioned, but I am in a position to say that first-hand information was available when the Piparo River was being handled by a contractor on behalf of the Ministry of Works and Transport and the contractor at that time handled the job in a most unprofessional manner with very poor project management which resulted in severe flooding which devastated a great area of Central Trinidad. The losses that were experienced by those people can in no way make up for it in any short-term period and it seems as though no compensation is coming to those people up to this time. It is important in any such project whether a study is done and what exists upstream and downstream in that area where the river is to be realigned. That is extremely important so we can focus on what hardships may come if severe flooding takes place. We know very clearly and only those who are hurting right now know how it feels. That is the reason for my taking this stance in alerting the Government, particularly the Minister of Works and Transport, to pay attention to this. 1.55 p.m Very sadly the terrible flooding that took place in Central Trinidad—many of us do not know and will never know the extent of the losses experienced by persons. Their losses amounted to millions of dollars being lost in agricultural produce, livestock, household equipment, furniture and carpets. A great deal was damaged and destroyed. We know that the question of compensation was attempted, but it has been frozen. Compensation is not being paid, and no serious consideration is being given. We ask again, about the realignment of that river. Is it being handled in the way some of us are aware of how such projects are handled? We have no doubt that the Government will consider it a legal obligation to compensate the owners of the land using the term “formerly, now or lately”. We 136 Land Acquisition Tuesday, April 13, 1999 [SEN. JAGMOHAN] are suggesting that from this point onwards, all steps be taken to compensate expeditiously. I am told by our friends that there is a terrible situation existing in Tobago with respect to the compensation for land. The Ministry, and the Minister, through the Parliamentary Secretary, supplied a list to us with respect to those persons who were compensated. But we understand that there is a larger number of people in Tobago who have not yet been compensated. We ask that attention be given to this matter. Mr. President, this is a matter which takes a long time. Perhaps, we need not lay the blame right now, but we request that those persons whose gardens would be destroyed when the tractors and other equipment begin to work, and those persons whose houses would be removed, that they be compensated expeditiously; especially those people who depend on their farms and gardens for their existence. We ask that this matter be handled in a different manner, not the manner in which acquisitions and realignment of rivers were done in other areas. There is a part in this Motion that states that it is to alleviate flooding. Flooding takes place in many parts of Trinidad. The Minister of Works and Transport is not in the Chamber at this time. I suppose we would be told that it is an act of the Supreme Being when it rains heavily and places get flooded and so forth. We are told this time after time. That very important southern link road—the Mosquito Creek, I do not know if it has another name—we see that some work was done there over the last two years, but the flooding continues to the extent that many of us who depend on travelling on that road must divert through La Fortune and Woodland or Debé and Penal through San Francique in order to get to Fyzabad. With regard to that aspect of flooding, we are urging the Minister of Works and Transport to speed up the process. Mr. President, having said these few words, we are hoping that some of the warnings that we have sounded, and some of the advice that we have given would be heeded. I thank you very much, Mr. President. Sen. Joan Yuille-Williams: Mr. President, before the hon. Senator replies, I have noticed, since I have been a Member of this Parliament, that each time a land acquisition Motion comes before us, it is just for one parcel of land, one area. I am a bit concerned about this. I remember, as a Member of a previous administration, whenever we had land acquisition a number of pieces came before us. In this case we have already used the parcel of land and we are now asking that the parcel be acquired. But, there are several other pieces out there which we have used and 137 Land Acquisition Tuesday, April 13, 1999 which have not come before the Parliament. I would like to know what are the criteria for this. Why is it that only one piece comes at a time? I remember some time ago the last one we dealt with was the Home Construction area—a selected piece. Today, with due respect to Ms. Kangalee, only this particular one is coming. I wish you could tell me what are the criteria, why is it that we do not get 10 or 15 as the case may be? Is it because when this comes, we are looking forward for payment on this and therefore we are not anxious to bring the rest? I think in fairness to all of them, the Government should go back and see all that it has already used and bring a motion to the Parliament in all honesty, and ask the Parliament to approve the acquisition of those lands and move forward with the payment. I remember, when we were dealing with the Investment Bill, we spoke about speedy payment for the foreigners whose lands we have acquired. I am hoping that this will also be done in the case of these. But, I am really concerned. I would hate to see again, that someone comes with a selected piece, because it would make us think, why this particular person? These are the things which cause people to ask questions—transparency and a number of other questions when, probably, they should not be asked. But, you would be forced to ask those questions if there are 40 or 50 persons whose lands have been used and this matter is not in Parliament, then suddenly out of the blue one piece crops up—I would really like to know what are the criteria? Why must this happen? This is the second time that I am seeing this happen here. I am not accustomed to it and I would really like the hon. Senator to tell us what are the criteria, and when is the Government prepared, in all honesty, to bring to this Parliament, a list of all the lands that it has used and has already acquired, which need the formal sanction of the Parliament. Thank you very much, Mr. President. The Parliamentary Secretary in the Ministry of Housing and Settlements (Sen. Carol Cuffy Dowlat): Mr. President, I want to thank my hon. colleagues and Senators for the contributions which they have made on today’s Motion. I want to begin by assuring Senators Dr. Mc Kenzie, Jagmohan and Joan Yuille-Williams that we are addressing the issue of compensation for lands and payments that have been outstanding since the 1950s and 1960s. This is not novel. We have in fact provided, under the 1999 budget, approximately $15 million for payment to persons whose lands have been used and, to date, have not been paid. This is a 1997 acquisition and we are dealing with it in 1999 so that we are, in fact, expediting payments. 138 Land Acquisition Tuesday, April 13, 1999 [SEN.CUFFY-DOWLATT] I want to assure Senator Yuille-Williams, that we would be doing the work that was not previously done. The reason we are bringing these matters which she has raised is that on many occasions titles have not been cleared, valuations have not been completed, or the matter is in the hands of the Director of Surveys. Only when those issues have been addressed can we, in fact, come before this House to ask for acquisition. This also brings me to the point of the question of payments. Dr. Mc Kenzie raised the issue with respect to the cost of valuation and payment. The estimated cost of acquisition is $5,280 which is broken down as follows: land $4,800; contingencies $480; total estimated cost $5,280.We regret to say that Mrs. Kangalee has, in fact, since passed away, but her estate is the receiver of any compensation that would be paid. 2.05 p.m. Sen. Mohammed raised the question of the road as the Sangre Grande road. I want to assure Sen. Mohammed that I am not in a position actually to question the technical competence of the engineers of the Ministry of Works, being merely an attorney, but I will have faith in their competence until I have reason to believe otherwise. Also, we do know of the accident on that bridge and we expressed deep sorrow and regret that a Member on her side, Mr. Boynes, lost his sister in that accident. We also know that Mr. Boynes had been crying out for that matter to be addressed and it was, in fact, not addressed when his administration was in office. So I think we must congratulate the Minister of Works and that Ministry for heeding the cries, not only of Mr. Boynes, but of all users of that road and that bridge. Sen. Jagmohan raised the question of where one can find the survey plan. If you look at the Appendix to the Order Paper, you would see: “The parcels are more particularly shown coloured raw sienna on a Survey Plan filed in Book 1140 Folio 192, in the vault of the Lands and Surveys Department, Red House, Port of Spain.” So it is not usual to have the survey plan attached here, but it is available. You can check in the vault of the Red House to locate it. On the issue of pollution of the Valencia River, I can assure you that the matter would be investigated and an appropriate statement made once that investigation has been completed. 139 Land Acquisition Tuesday, April 13, 1999 Once again, on the realignment of the Caparo River, we must have some confidence in our technical people and I am certain that they would have considered all the issues raised, so that when the alignment of the Caparo River is, in fact, completed, all the questions which Senators are raising would have been addressed. Dr. Mc Kenzie had indicated to me earlier that when our last acquisition was brought here the question of compensation for some Tobago persons had been raised and we have provided a list of 15 pieces of land which were acquired in Tobago but which were not paid for. On the 20th of the first month of 1999 at least one additional person had, in fact, been paid, Mrs. Sybil Pitt. She was paid $10,885.20 for the compensation of her lands. You see, we can only pay when we have been assured by the Director of Surveys that title has been cleared and the Valuation Department has given us a cost. So that these matters are all being addressed and the moment we are convinced that all the groundwork has been done we would bring matters of compensation before this honourable Senate. Mr. President, in these circumstances, I beg to move. Question put and agreed to. Resolved: That this House approve the decision of the President to acquire the land described in the Appendix for the purpose specified. APPENDIX DESCRIPTION PUBLIC PURPOSES FOR WHICH TO BE ACQUIRED The parcels of land comprising together 150. 1. square metres Realignment of the more or less, situate on the southern side of the Eastern Main Valencia river to Road, Valencia, approximately 40 metres east of the of the alleviate flooding 22¼ mile mark, in the ward of Manzanilla in the county of St. Andrew and described in the schedule and coloured raw sienna on a plan of survey signed by the Director of Surveys and dated July 31st, 1996 and filed in his office are required for a public purpose: Realignment of the Valencia River to alleviate flooding. 140 Land Acquisition Tuesday, April 13, 1999 DESCRIPTION PUBLIC PURPOSES FOR WHICH TO BE ACQUIRED SCHEDULE Two parcels of land containing together 150.1 square metres more or less, situated on the southern side of the Eastern Main road, Valencia, approximately 40 metres east of the 22¼ mile mark, in the ward of Manzanilla, in the county of St. Andrew and said to belong now or formerly to Mrs. Fay Kangalee. The parcels are more particularly shown coloured raw sienna on a Survey Plan filed in Book 1140 Folio 192 in the Vault of the Lands and Surveys Department, Red House, Port of Spain. VENTURE CAPITAL (AMDT.) BILL Order for second reading read. The Minister of Finance (Sen. The Hon. Brian Kuei Tung): Mr. President, I beg to move, That a Bill to amend the Venture Capital Act, 1994, be read a second time. Mr. President, I hate to sound repetitive but this matter can be considered to be relatively simple. I am sure this honourable Senate will recall that in 1994 a Venture Capital Act was enacted to provide for, among other things, the establishment, regulation and administration of a venture capital industry in Trinidad and Tobago. It was meant to create such an industry and it provided, among other things, for the appointment by the President of an administrator of venture capital companies. One of the duties, Mr. President, of this venture capital administrator included, among other things, the issuing of a tax credit certificate to persons who have purchased shares issued under section 29, that is under subsections (1) and (2) of the Act. Mr. President, section 29(4) of the Venture Capital Act requires that the above mentioned tax credit certificate be issued by the administrator of the Venture Capital Incentive Programme within 45 days of the date of the receipt of the 141 Venture Capital (Amdt.) Bill Tuesday, April 13, 1999 application. It was an onus that was placed upon the administrator to ensure that tax incentives which had been provided were given forthwith and forthright to ensure that there was no undue delay. It therefore put the onus on the administrator to ensure that this tax certificate was issued within 45 days. Mr. President, Parliament has asked to know that the previous administrator was appointed administrator of venture capital companies in 1996, about mid-year I think, and served in that capacity during the period July 12, 1996 until July 12, 1998, at which time his term of engagement expired. An advertisement for the position of Administrator, Venture Capital Incentive Programme was placed in two of the daily newspapers in May of 1998 in anticipation of the expiry of his term of office and it attracted applications from seven persons. Regrettably, Mr. President, none of the persons was found suitable and, therefore, the appointment of an administrator had to be further delayed. The appointment of an administrator is to be made shortly. What we propose to do is to appoint the Compliance and Financial Officer of the Venture Capital Incentive Programme to the post of Administrator. This, Mr. President, is because the person, a female, stacked up quite well against the seven applications we received in response to the advertisement. As a matter of fact, she has been acting in the position and has acted quite well since then, and that is how the decision has been made to have her appointed Administrator. It is, therefore, not possible, given these circumstances, for the provisions of section 29(4) of the Act, which requires a tax credit certificate be issued within 45 days upon receipt of application, to be met. As such, Mr. President, the Venture Capital Incentive Programme has not issued any tax credit certificates since July 12, 1998. To correct this I am proposing an amendment to section 29 of the Venture Capital Act, 1994 which shall be inserted after subsection (4) and will read as follows: “(5) Notwithstanding subsection (4), where on account of a vacancy in the office of Administrator, a tax credit certificate is not issued to a shareholder within the period stated in that subsection, the certificate shall be issued by the new Administrator within twenty-one days of his appointment.” This amendment would enable administrators, when appointed, to issue tax credit certificates for applications which have been with the Venture Capital Incentive Programme in excess of 45 days. 142 Venture Capital (Amdt.) Bill Tuesday, April 13, 1999 [HON. B. KUEI TUNG] Mr. President, the Venture Capital Incentive Programme, as you know, seeks to promote the creation and development of small and medium-sized businesses throughout the nation by the provision of what is described as venture or equity capital to these businesses for the long term. This Government recognizes that the development of the small and medium sized business sector must form a crucial part in any plan to modernize or diversify our local economy. The Venture Capital Incentive Programme will play an increasingly important role in this regard. As such, it is essential that Parliament enact the above amendment without delay, as not to do so could jeopardize the growing investor interest and confidence in the venture capital industry. Furthermore, Mr. President, Government is mindful of the fact that we are approaching April 30, 1999 and this is the stipulated due date for the filing of individual income tax returns. Individuals who have purchased shares issued within the requirements of section 29 subsections (1) and (2) of the Act must be allowed the right to claim the respective tax credit on their 1998 income tax return. Accordingly, I wish to recommend to this honourable Senate that they support this amendment to section 29 of the Venture Capital Act. I may add, Mr. President, that by the end of 1998, by way of information, the total capital raised by the two venture capital companies registered in 1998 increased by TT $1.1 million or 53 per cent to $3.1 million. So the equity capital raised for 1998 by these two companies, one Prudent Venture Capital Company, $211,750.00 and Adventure Capital Company, was $866,442.00 bringing the total of the amount raised by all venture capital companies to $3.11 million. With these very few words, Mr. President, I beg to move. Question proposed. Sen. Danny Montano: Mr. President, we on this side have no particular difficulty with this piece of legislation. It is quite simple. It is a procedural matter, as the Minister has adequately explained. However, surrounding the issue there are one or two matters I would like to ask the Minister about, and that is, as he very well pointed out, the deadline date for finalizing these certificates so that taxpayers can have the benefit of them is April 30. So I understand that. However, I do understand what happens with the Inland Revenue Department. That is to say, I do not quite know what the certificate looks like, but if it bears the date 1999 it is going to create some confusion in the minds of the Inland Revenue employees unless somewhere on the certificate it says that it relates to the 143 Venture Capital (Amdt.) Bill Tuesday, April 13, 1999 investment that took place in 1998. So that could very well create all kinds of snafus for taxpayers. I would ask the Minister to clarify that issue so that there are no problems. The only other thing I would like to ask the Minister is this. As I recall, in his budget contribution he indicated that the venture capital of a company was likely to come under the administration of the Small Business Development Company. As regards that, I think some clarification of what has taken place would be very useful for us in the business sector. As I recall also, the original legislation had limits on the amount of equity or venture capital a company could buy into or borrow, as it were, to a maximum of 49 per cent of the equity. There was also a maximum limit on the extent of the investment of $3 million. I think that the company had to be limited in size to 75 employees. I would ask the Minister, considering the limited success of the venture capital project, whether those limits are, in fact, being reconsidered in view of the fact that you intend to move it under the Small Business Development Company. The Minister of Finance (Sen. The Hon. Brian Kuei Tung): I must thank the hon. Senator for his support of this amendment and for his understanding of what has happened here. I think the difficulty really is that we have not been able, without this legislation and the amendment—because even if we did appoint, which is what I had attempted to do—I attempted to appoint the new administrator, as I said, Ms. Judith Mark, I think that is her name, in compliance as financial officer. She should have been there since the inception, I think. She really has worked quite exceptionally and, as a matter of fact, she has literally held the reins since the departure of the previous administrator and has really gone about trying to do the best there. And I say that particularly because I feel personally she has been tested. First, I announced in the budget, as you rightly said, that it is being transferred to the Small Business Development Company, so there was some loss of interest, if you want to call it that, because it was in-between. 2.20 p.m. Mr. President, just to answer Sen. Montano's question, Cabinet has already made the decision in a separate note, to transfer it. I thought that I had read something about it earlier on, that it had already been transferred, but I know that the Ministry of Trade and the Small Business Development Company have not really assumed the responsibility in a full way. In the meantime, Miss Mark kept 144 Venture Capital (Amdt.) Bill Tuesday, April 13, 1999 [HON. B. KUEI TUNG] the ball rolling, as it were, and even with the loss of the administrator she continued to keep plugging away at it. So it was unfortunate that we could not have gotten her appointed, but even if we did ,she could only have done those that will come within 45 days of her tenure. This is to make sure that all those applications that came in since July 12 that were sitting on her desk, she thought that even acting as administrator she could have done them. Apparently she could not, and the only person under the law who can actually issue these tax certificates is the administrator, not an acting administrator. I have to get this piece of amendment in, in time for those other people. I can give the assurance that I have been told by the Board of Inland Revenue there would be no difficulty in recognizing the certificate in 1998, even though it might be dated 1999. Again, I give the assurance that there is no snafu, as the Senator said, or any foul up, because we would not want it to lose any further momentum. Basically we are trying to find a way to harmonize the Venture Capital Incentive Programme with the Small Business Development Company. It was in the Ministry of Finance, but it really did not have a proper fit, and that is why in the budget I said that maybe the better fit would have been for it to be somewhere around the Small Business Development Company. In any case, Mr. President, you will remember that in the budget I announced that we would put a team together, because of our development of what is called small or rather micro enterprises and small business. Some people get confused, they think that small business is small, whereas under normal international measures, small business is fairly big. When we think about big business we speak about Shell and Exxon, so you can imagine that small business cannot get anywhere near these, and small business in the international sphere is somewhere near US $250,000. Now, we do not have those kinds of small businesses, instead we go toward the expression "micro enterprise" which is pretty close to the definition of the honourable Senator. I am hoping that this team headed by Mr. Neil Rolingson, the Chief Executive Officer of PLIPDECO—and I think his report is about due in—would look at all these things and see how they can rationalize them. So they look at the Venture Capital, and what the Small Business Development Company has been doing. In one case the Small Business Development Company has a new leasing company, and in another case they give guarantees to the banks. I am not too sure whether we are satisfied that those guarantees given by the Small Business Development Company, which is an arm of Government and which can be considered as a government guarantee, have really benefited applicants for loans, because we hear 145 Venture Capital (Amdt.) Bill Tuesday, April 13, 1999 that the guarantee is only seen as collateral, but there is no benefit to the applicant in terms of a reduced interest rate. I cannot think of a better gilt edge investment for a bank than to get a guarantee from an arm of Government. Even though it is not a direct guarantee, they are guaranteed that their money would not be lost under normal circumstances. Yet these applicants are not benefiting from a lower rate of interest, which is what we would expect. More than that, there are other organizations like FundAid which also do small business lending, and we ourselves have also been considering—I did announce in the budget too—that there would be some direct lending being done by the Small Business Development Company, but it had to be done in a rationalized environment. That is why I am anxiously waiting for the report that comes in on the Small Business Development Company so that we do not seem as though we are running off in several directions at the same time: one, we end up confusing people who want to go into small business, they are not too sure where to turn; two, there are several avenues. I remember Sen. Prof. Spence asked me whether the Agriculture Development Bank was part of it too, because it also lends money for what might be regarded as small or micro enterprises. So there is some rationalization that is quite critical and necessary. I merely mentioned all that to show that the Venture Capital Incentive Programme is another feature of that whole landscape. I thank you for your support. Mr. President, I beg to move. Question put and agreed to. Bill accordingly read a second time. Bill committed to a committee of the whole Senate. Senate in committee. Clauses 1 and 2 ordered to stand part of the Bill. Question put and agreed to, That the Bill be reported to the Senate. Senate resumed. Bill reported, without amendment, read the third time and passed. REGISTRATION OF CHARGES (MOTOR VEHICLES) BILL Order for second reading read. The Minister of Works and Transport (Sen. The Hon. Sadiq Baksh): Mr. President, I beg to move, 146 Motor Vehicles Bill Tuesday, April 13, 1999 [HON. S. BAKSH] That a Bill to provide for the registration of charges on motor vehicles and for matters incidental thereto be read a second time. Mr. President, the primary purpose of this Bill is to protect the prospective motor vehicle purchaser from monetary loss and undue hardship when undertaking transactions. The problem stems from the process of registration of motor vehicles insofar as it relates to the question of encumbrances on motor vehicles. At present, the system of motor vehicle registration affords information with regard to the date of registration of the vehicle; the name of the registered owner; and particulars of the change of ownership in the form of a certificate card copy of ownership. The process, however, does not afford the means by which it would be possible at any given time to ascertain as to whether encumbrances remain on a motor vehicle being the subject of a purchase. Currently, bills of sale on motor vehicles are registered at the Registrar General's Office as per the provision of the Bill of Sale Act, Chap. 82:32. However, there are other methods by which motor vehicle purchases are made, resulting in a variety of instruments that create charges on motor vehicles that are not under the Act. Mr. President, I am sure that you and other Members of this honourable Senate can appreciate the risks these registrable charges bring to bear on the purchaser of a vehicle. There have been cases which have wound up in the courts where vehicles have been purchased by innocent persons allegedly free from encumbrances when, in fact, the said vehicles were subject to mortgage bills of sale, higher purchase agreements or other forms of unregistrable charges. While a vendor in such a case shall be liable in a civil action and conceivably criminally liable to the purchaser in such instances, in cases where the vehicle in question has been subject to a chain of such transactions, it becomes extremely difficult to establish the proper party or parties in legal proceedings. It is, therefore, most important that a system be established in order that a prospective buyer be made aware of any liabilities or charges he may incur or be liable to when he seeks to purchase a motor vehicle. Such a purchaser should be placed in no less favourable a position as regards the title of the vendor than a purchaser of land enjoys at present. This Bill seeks to establish a centralized system for the registration of all charges on motor vehicles, with the Licensing Authority, and where the vehicle is not in the possession of the holder of said charge, places the onus upon him to 147 Motor Vehicles Bill Tuesday, April 13, 1999 register that charge. The registration of charges, Mr. President, is most important for the following reasons: (a) That as against the interest of a subsequent third party who registers his interest, an unregistered charge is deemed by this Bill to be unenforceable in a court of law; and (b) priority of charges is determined by the date of registration of the charges. With an establishment of the proposed centralized system, it is intended that all instruments creating a charge on a motor vehicle shall be registered in one registry. This will eliminate as best as possible all hardships caused when motor vehicles are sold and are subsequently found to be the subject of undisclosed charges. It is envisioned that prospective buyers shall have instant access to all pertinent information with regard to the motor vehicle's history and attendant charges affecting it. Purchasers shall, therefore, be placed on notice before parting with their hard-earned money and exposing themselves to legal hardships. With the proliferation of the used-car market in Trinidad and Tobago, it should be quite clear to you and Members of this honourable Senate here today, that more than ever before, improved means of protecting the purchaser is needed. The establishment of the proposed registry seeks to aid, assist and protect such customers and consumers. Mr. President, during the initial debate of this Bill in 1997, queries were raised on individual provisions of this Bill in its initial form, as well as to the system of registration generally. My colleague, the hon. Attorney General and Leader of Government Business in the House of Representatives, gave an undertaking to the Members of the House that their concerns would be addressed and their proposed amendments determined. However, the policy behind the Bill predates the present administration by over a decade. With that in mind, the Government took the opportunity to revisit the original policy and update it accordingly. The Bill before this Senate today is the result of the updating of the policy and the redrafting of the Bill; the joint effort of the Attorney General's Office, the Ministry of Works and Transport, the Law Commission and the advice of the Registrar General's Department. 2.35 p.m. I would now like, Mr. President, to go into the clauses of the Bill, highlighting the important provisions and indicating their purpose. 148 Motor Vehicles Bill Tuesday, April 13, 1999 [HON. S. BAKSH] Clause 2 serves to define the important terms used in the Bill. The most important definition is of the term “charge”. This dictates what form of transaction forming a security interest is covered for the purposes of this Bill. A charge is, therefore, defined as: “any security interest evidenced in writing and created by any consensual transaction”—that is, a transaction where all parties have agreed—“whereby a motor vehicle is used as collateral.…” This shall serve to cover such transactions as the credit sale agreement, hire-purchase agreement, mortgages, bill of sale, a lease, a contract of sale and a transfer. However, it excludes transactions under the Pawnbrokers Act, where the vehicle would become the actual possession of the pawn holder. Other than this, all consensual transactions of the type listed above, shall be registrable charges under this Bill. The other important definitions included in clause 2, shall be dealt with in details in the appropriate provisions of this Bill. Mr. President, clause 3 outlines the scope of the Bill, that it shall apply to every transaction that under the Bill creates a security interest in a motor vehicle. For the purposes of the Bill a security interest is defined as any interest in a motor vehicle securing payment or other performance of an obligation. It shall include the interest of a lessor under the lease with an immediate right of possession in the lease and/or with an option to purchase and also a lease with a one-year term. Part II of this Bill, Mr. President, outlines the validity of charges and rights of all parties. Clause 4 states that subject to the Bill and other laws, a security agreement—defined in clause 2, as an agreement that creates or provides for a security interest—that creates a charge is effective subject to its particular terms. Clause 5 outlines the requirements of a registrable charge. An agreement creating such a charge shall be enforceable against any third party claim if: “(a) the motor vehicle is in the possession of the secured party” that is, the party who has the security interest; or “(b) the debtor has signed a security agreement...” as defined under clause 2, which identifies the motor vehicle and contains a statement that a security interest is taken in all the debtor’s present and acquired personal property. Clause 6 states the form of the charge which is detailed in the Schedule to this Bill. 149 Motor Vehicles Bill Tuesday, April 13, 1999 Clause 7 gives the secured party the authority, if he so desires, to render the priority of his security interest subordinate to another such interest he may have. Part III of this Bill deals with the effect of registration under this Bill and the resultant effect of priorities. It contains clauses 8 to 10. Clause 8 states, with certain exceptions to the provisions of this Bill, that any unregistered charge—that is, any charge on a motor vehicle not registered in accordance with the provisions and forms of this Bill—shall be unenforceable as against any subsequent purchaser or secured party who has registered his charge first. Basically, Mr. President, this places the onus upon the purchaser to register his charge, or risk losing his interest in the motor vehicle he has purchased, as only charges registered under this Bill shall be given priority. Clause 9 makes registration under this Bill exclusive to this Bill alone. Therefore, Mr. President, such charges made under this Bill are thereby exempted from the need for registration under any other Act. In other words, Mr. President, there shall be no need to register these charges under other provisions of legislation relating to or requiring the filing of documents or recording the same. Therefore, laws such as the Companies Act, the Bills of Sale Act, or the Cooperative Societies Act are excluded from this process. Sen. Daly: Could you please state what is meant by the provisions of the Bills of Sales Act, and the co-operative Societies Act which are excluded from this process? Could you explain a little more on that for me please? Sen. The Hon. S. Baksh: Mr. President, in terms of the registration of charges under this Bill, it will be the only place under which it will be registered. Under the other legislation, the Companies Act and the Bills of Sale Act, and possibly, under the Co-operative Societies Act, there was a similar process of registration. Now, this will be registered only in one place with a centralized registry. And it is under this Act they will take precedence over everything else. Clause 10 states that where a person may furnish materials or services with respect to a motor vehicle already the subject of a charge any lien or an equivalent right of possession over such materials or services shall in his term have priority over a registrable charge, notwithstanding its prior registration. This is one of the exceptions to clause 8. Part IV, Mr. President, contains clauses 11—24, and goes into details of the registration process. Clause 11 establishes the Licensing Authority, the Transport 150 Motor Vehicles Bill Tuesday, April 13, 1999 [HON. S. BAKSH] Commissioner, as the Registration Authority under the Act, charging him with the responsibility for the registration of motor vehicle charges. Clause 12 establishes the Authority’s central office and attendant registration system at the Transport Division, Port of Spain offices, with the ability to designate suboffices, as and when necessary, by means of regulations. 2.45 p.m. Clause 13 makes provision for the designation of authorized officers to serve at the aforementioned sub-offices so designated in order to conduct the business of registration on the Authority's behalf. Clause 14 outlines the method by which persons can apply for the registration of a charge on a motor vehicle by means of tendering a financing statement. The financing statement is designed in such a way that the following information integral to the charge is to be given: names of the parties to the transaction; the addresses of the parties; the date of the transaction; the vehicle registration number; the amount of money secured by the charge; and other prescribed information depending upon the nature of the transaction. Upon compliance with clause 14 in its entirety, the particulars as described above shall be entered by means of the financing statement into the register by the Authority. Under clause 15, each charge shall then be issued a number assigned to it according to the time of acceptance of the financing statement. The number given is the determining factor of priority of registration. Clause 16 allows the person with the option of tendering his financing statement through the mail if he cannot appear at the offices of the Authority in person. The effective length of a registration on a charge shall be for a period not exceeding five years. Such period shall be indicated on the financing statement by which the registration is effective. Clause 17 also provides for amendment or renewal of a registration. However, it must be done before the original registration expires. In the case of a renewal, a renewal period shall not exceed five years. This is done by means of the tendering of a new financing statement either renewing or amending the original registration as the case may be. Clause 18 establishes the requirement of new information with regard to the charge that must be registered where the holder of the charge assigns his interest in the security. For these purposes, it is necessary to tender a fresh financing 151 Motor Vehicles Bill Tuesday, April 13, 1999 statement that indicates that the assignee of the security is now the secured party. Once this new statement is registered, the assignee becomes the secured party of record for the purposes of the register. Under clause 19, Mr. President, a registration of a charge may be cancelled by the registration authority: (a) Where he receives notice from a secured party of record acknowledging that a liability under a charge has been released, satisfied or discharged, or (b) In the absence of said notice, may cancel a registration by entering into the registry the details of a release or discharge once presented with affidavit evidence of same brought before an interested party and lodged with the Authority. Such cancellation by the Authority may only be effective 14 days after the authority has given notice to the affected secured party and all other interested persons on the register pertaining to the charge in question. If necessary, provision is made for the authority to summon a party to the charge in order to show just cause why the cancellation should not take place. Provision is made under clause 20, Mr. President, to effect a change on the register through the tender of a financial charge statement made out on the prescribed form. This provides for information regarding the charge itself and amendment of the security arrangement, a change of name or address of the parties to the charge, and/or a clerical error. It is further provided that such change shall be made at any time during the period within the registration. One will recall that it was previously provided at clause 7 of this Bill that a secured party may subordinate his interest to any other security. In such a case, clause 21 provides that a financing charge statement could be registrable at any time during which such subordinated interest is effective. Clause 22, with regard to the renewal of registration, already touched upon clause 17 of the Bill and allows for: (a) The renewal of registration by way of a financial charge; (b) And if the application is made before the expiration of the current registration period, and the renewal of registration by way of a financial statement if the application is made after the expiration of the current registration period. 152 Motor Vehicles Bill Tuesday, April 13, 1999 [HON. S. BAKSH] Clause 23, Mr. President, recognizes the fact that there shall inevitably be some omissions, errors or misstatements on the face of an entry of a registration or the cancellation of a charge. In such cases, the Authority may, of its own accord, or on the application of any party to the charge, rectify the registration under the following conditions: (a) For the purpose of priority, registration of the charge shall be effective from the date of rectification. (b) Notice must be given by the Authority to the party concerned, as well as all interested parties. (c) If having cancelled a charge, the Authority is satisfied that the affidavit or other documentary evidence that was relied upon is materially false, the cancellation itself may be revoked. (d) Mailing of notices shall be made to addresses current or amended of parties as stated on the register. A prospective consumer or persons desirous of searching the register for information or on a motor vehicle shall make a request and pay the prescribed fee under clause 24. The Authority shall issue a certificate to the applicant stating whether there is or is not a financing statement or financing charge statement registered on a vehicle, whether it is still effective and, if so, the particulars stated, including its number in regards to priority. The Authority may also furnish a certified copy of the financing statement or financing charge statement to the applicant. A certificate presented to the applicant, or a certified copy of a statement shall, for the purposes of the Bill, be evidence of their contents and of the due and proper registration of the charge. Part V, Mr. President, consists of clause 25. This clause establishes a fund to be known as the Registration of Motor Vehicles Assurance Fund. This fund shall consist of moneys derived from Government appropriations, as well as fees collected under the Act. This fund shall be administered by the Comptroller of Accounts. The purpose of the fund is to compensate persons who have suffered loss and damage through their reliance upon a certificate issued by the Authority under clause 24; that is because of errors, omissions or misrepresentations on the certificates issued. A person so aggrieved and claiming to have suffered loss or damage may also have recourse to the courts to apply for compensation. 153 Motor Vehicles Bill Tuesday, April 13, 1999 Part VI deals with various miscellaneous provisions of this Bill and contain clauses 26—34. Clause 26 entitles selected persons: the debtor; persons with interest in personal property of the debtor; or an authorized representative of both, to apply for or demand in writing from a secured party the following information: a copy of a security agreement concerning the party's motor vehicle; a statement of indebtedness; and information as to the location of the security agreement. Clause 27 directs that the secured party who receives a request under clause 26 shall comply with such requests. Clause 28 provides that should there be noncompliance on the part of the secured party, the persons making the demand may apply to the court for an order compelling the securing party to comply with the said request. Clause 29 provides that a secured party who has complied with a request under clause 26 is estopped from denying the accuracy of the information requested, but only to the extent of the information relied upon. A successor in the security interest is also considered. Clause 30 makes it an offence to: (a) remove, conceal, destroy, alter, mutilate or falsify any register, entry book, certificate, index or other records relating to the registration of charges without the written authority of the Authority; and (b) knowingly supply false information with respect to the registration or cancellation of a charge. Persons are liable in the former category of offences to a $100,000 fine and a 10year prison term, and in the latter category of offence, $50,000 fine and a five-year prison term. 3.00 p.m. Mr. President, clause 31 allows the Minister to make regulations as necessary, for the better functioning and carrying out of the Act including inter alia the following: (i) The form, content and manner of financing statements and financing change statements. (ii) The Registry and duties of the Authority. 154 Motor Vehicles Bill Tuesday, April 13, 1999 [HON. S. BAKSH] (iii) Content and use of notices under the Act. (iv) Records of the registry on methods of disclosure. Clause 33 amends the Bills of Sale Act Chap. 82:32 to include motor vehicles as chattels and, therefore, including bills of sale of transactions creating a registrable charge for the purposes of this Bill. Mr. President, let me reiterate that the Bill has been redrafted to address concerns that arose out of the original sitting. These may be summarized as follows:1. The nature of the interest to be covered by the Bill, with the expanded definition of “charge” contained in clause 2 of the Bill. There is a two-fold effect: (a) Arrangements such as conditional sales contract, hire purchases, leases on bills of sale—agreements that make a purchaser an apparent owner without necessarily having title to the motor vehicle are brought within the legislation. (b) Other security interests which fall outside of the proposed legislative scheme because of their small monetary nature, brief duration or otherwise are excluded rather than having them clutter up the register. The most obvious example is the Pawnbrokers’ agreement. 2. Documentation to be filled: The purpose of the register is to report quickly and relatively inexpensively whether a charge is registered, for the purpose of simplification and for the avoidance of having to file original documents into the register. 3. Provisions made for financing statements: Summaries of transactions in the prescribed format providing information as to names and addresses of parties to the transaction, dates of the transactions, a registration number and the description of the vehicle, the amount of money secured by the charge and other prescribed information. It is accepted that the state should be liable in cases where the report of a search fails to reveal a charge that is in fact registered or if the sequence of registering is incorrectly reported and as a result a person suffers loss and damage. 155 Motor Vehicles Bill Tuesday, April 13, 1999 Mr. President, it is possibly on the first occasions under such an Act that the state will accept the responsibility for compensation for error of employees within its service. As we continue to improve legislation for motor vehicles in all its forms, I hereby submit the Bill entitled the Registration of Charges (Motor Vehicles) Bill, 1999 for the consideration of Members of this honourable House. I beg to move. Question proposed. Sen. Nafeesa Mohammed: Mr. President, as I sat here listening to the hon. Minister of Works as he presented this Bill, I noted that he was extremely cautious in his presentation and, I take it that from the last occasion when he brought a previous Bill in this Parliament, that is the reason he may have attempted to present this Bill with greater care. However, even after listening to him, I am not too sure that the Minister himself understood and knew exactly what he was talking about and dealing with. It is very clear, Mr. President, from his presentation as he tried to walk us through this Bill. Once again, upon perusing the provisions of this Bill, I myself had great difficulties in trying to follow some of the provisions. The Bill itself is, clearly, a codification in many respects of some very complex legal principles. I heard the hon. Minister just now talk about being estopped; and any law student would know that in law, that concept of an estoppel is indeed a very complex one. I see that in this particular piece of legislation there is that kind of provision: very legalistic, very difficult to follow through and it is of concern to us, because at the end of the day, we have to ask ourselves the question, for whom is this Bill intended? If it is for the motoring public, then certainly, the Bill should come in a form in which it would be more user friendly and easier for an average citizen to, at least, read through the Bill and be able to understand or appreciate some of the provisions in it. But certainly, Mr. President, in its present form it leaves a lot to be desired. We need to ask ourselves, what is the mischief that this Bill is seeking to remedy? In terms of that mischief, Mr. President, we on this side are mindful of the fact, that in Trinidad and Tobago there is, indeed, no real, as the Bill puts it here in the Explanatory Note, comprehensive registration system of charges with respect to motor vehicles. 156 Motor Vehicles Bill Tuesday, April 13, 1999 [SEN. MOHAMMED] Mr. President, I know for a fact that throughout the length and breadth of the country there are several people who have had some very unfortunate experiences. I myself can recall an instance when a gentleman had purchased a motor vehicle from another person and that gentleman whom we shall call “X”, is one who can be described as a bona fide purchaser for value. He bought this motor vehicle only to realize some months down the road, that the vehicle had, in fact, been the subject of a charge. There was in fact a hire purchase arrangement with respect to that motor vehicle and the person from whom he bought that vehicle had not been paying the instalments. In fact, he had taken out that loan the day before he actually sold the vehicle to “X” and with the instalments not being paid, the financial company did what they are authorized to do and proceeded to seize that vehicle from “X” and “X” was left without a vehicle and left in limbo. Mr. President, I myself had the experience of having to come to the registry right here, located downstairs in the Red House, in an effort to do a search to see whether there was anything registered as a charge, with respect to that vehicle. 3.10 p.m. From that kind of first-hand experience what is very evi