Bill 13 - An Act to Amend the Crown Lands and Forests Act

BILL 13

An Act to Amend the Crown Lands and Forests Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 24 of the Crown Lands and Forests Act, chapter C-38.1 of the Acts of New Brunswick, 1980, is amended

(a) by repealing paragraph (1)(c) and substituting the following:

(c) shall include the terms and conditions prescribed by regulation and any other additional terms and conditions imposed by the Minister,

(b) by adding after subsection (1) the following:

24(1.1) A lessee of Crown Lands shall not use Crown Lands for a purpose not provided for in the lease.

2 Section 25 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

25(1) The Minister may grant a right-of-way or easement with respect to Crown Lands.

(b) by adding after subsection (1) the following:

25(1.1) A right-of-way or easement with respect to Crown Lands shall include the terms, conditions and reservations prescribed by regulation and any other additional terms, conditions and reservations imposed by the Minister.

25(3) A person who has been granted a right-of-way or easement with respect to Crown Lands shall not occupy or use the Crown Lands for a purpose not provided for in the right-of-way or easement.

3 Section 26 of the Act is amended

(a) by repealing subsection (1.3) and substituting the following:

26(1.3) A licence of occupation shall include the terms, conditions and reservations prescribed by regulation and any other additional terms, conditions and reservations imposed by the Minister.

(b) by adding after subsection (5) the following:

26(6) The holder of a licence of occupation shall not occupy or use Crown Lands for a purpose not provided for in the licence of occupation.

4 The heading “TRESPASS TO CROWN LANDS” preceding section 70 of the Act is repealed and the following is substituted:

TRESPASS AND UNAUTHORIZED OCCUPATION AND POSSESSION OF CROWN LANDS

5 Section 70 of the Act is amended

(a) by repealing subsection (2);

(b) by adding after subsection (6) the following:

70(7) A person who violates or fails to comply with an order of the Minister issued under subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

70(8) If an offence under this section continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

6 Section 71 of the Act is repealed and the following is substituted:

Unauthorized occupation or possession of Crown Lands

71(1) Otherwise than under the authority of this or any other Act or under the authority of the Minister, no person shall

(a) occupy or possess Crown Lands,

(b) being the holder of a lease, right-of-way, easement or licence of occupation, occupy or possess Crown Lands for a purpose not provided for in the lease, right-of-way, easement or licence of occupation,

(c) construct, place or leave, cause to be constructed, placed or left or permit the construction, placing or leaving of any building, structure or enclosure on Crown Lands,

(d) abandon, place or dispose of, cause to be abandoned, placed or disposed of or permit the abandonment, placing or disposal of any vehicle, vessel, property or thing on Crown Lands,

(e) place or dispose of, cause to be placed or disposed of or permit the placing or disposal of any natural or man-made material, including glass, metal, garbage, debris, residue from manufacturing or construction or machinery, on Crown Lands except in a dump or landfill provided for that purpose by the Crown, a municipality, a rural community or a lessee,

(f) perform any dredging, excavation or filling or cause to be performed any dredging, excavation or filling on Crown Lands,

(g) operate any machinery or equipment or cause to be operated any machinery or equipment on Crown Lands,

(h) seed, tend or harvest crops on Crown Lands, or

(i) keep or pasture any animal on Crown Lands.

71(2) A person who violates or fails to comply with subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

71(3) In addition to a penalty imposed under subsection (2), the court may order any person convicted of an offence under this section to restore the Crown Lands to a condition as nearly as practicable as they were before the offence was committed.

71(4) If an offence under this section continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

71(5) In a prosecution with respect to an offence under this section, if it is alleged that an act that the accused is proven to have done was done on Crown Lands, as shown on the records and plans on file in the office of the Minister, the accused shall, in the absence of evidence to the contrary, be deemed to have done the act on Crown Lands.

7 The Act is amended by adding after section 71 the following:

Failure or refusal to comply with subsection 24(1.1), 25(3), 26(6) or 71(1)

71.1(1) If the Minister is of the opinion that a person has failed or refused to comply with subsection 24(1.1), 25(3), 26(6) or 71(1), the Minister may

(a) issue an order to comply instead of commencing proceedings in respect of the failure or refusal or in addition to commencing proceedings, and

(b) if the person is a holder of a lease, right-of-way, easement or licence of occupation and uses the Crown Lands for a purpose not provided for in the lease, right-of-way, easement or licence of occupation, cancel the lease, right-of-way, easement or licence of occupation, as the case may be.

71.1(2) An order to comply referred to in paragraph (1)(a) may require the person to whom it is directed

(a) to cease and desist trespassing on Crown Lands,

(b) to cease any unauthorized occupation or possession of Crown Lands that is referred to in subsection 71(1),

(c) to restore the Crown Lands to a condition as nearly as practicable as they were before the unauthorized occupation or possession referred to in subsection 71(1),

(d) to remove any property or thing referred to in subsection 71(1) that is constructed, placed or left on Crown Lands,

(e) to remove any property or thing referred to in subsection 71(1) that is abandoned or disposed of on Crown Lands, and

(f) to carry out other measures, specified in the order, in order to effect compliance with subsection 24(1.1), 25(3), 26(6) or 71(1), as the case may be.

71.1(3) An order to comply shall

(a) be in writing and include the reasons for the order,

(b) specify the measures required to be carried out under the order, and

71.1(4) The Minister shall give notice of the order to comply to the person to whom the order is directed

(a) by personal service,

(b) by registered mail at the last known address of the person, in a manner that provides the Minister with an acknowledgement of receipt, or

(c) if a person cannot be given notice of the order by one of the methods described in paragraph (a) or (b), by, on 2 separate occasions,

(i) posting a copy of the order in a conspicuous location on the Crown Lands for a 30-day period, and

(ii) publishing a notice of the order in at least one publication having general circulation in the area in which the Crown Lands to which the order relates are situated.

71.1(5) A notice given under paragraph (4)(b) shall be deemed to have been received by the person to whom the order is directed 10 days after the date the letter was sent.

71.1(6) A notice given under paragraph (4)(c) shall be deemed to have been received by the person to whom the order is directed on the day the publication and posting periods referred to in that paragraph have expired.

71.1(7) A person to whom an order to comply is directed shall comply with the order within the time period specified in the order.

71.1(8) No action shall be taken by the Minister to effect compliance with or to carry out an order to comply until the expiry of the period referred to in subsection (7).

71.1(9) The Minister may

(a) amend a condition in an order to comply or add a condition to or delete a condition from an order to comply, and

(b) cancel an order to comply.

71.1(10) A person who violates or fails to comply with the order commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

71.1(11) If an offence under this section continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

71.1(12) In a prosecution with respect to an offence under this section, if it is alleged that an act that the accused is proven to have done was done on Crown Lands, as shown on the records and plans on file in the office of the Minister, the accused shall, in the absence of evidence to the contrary, be deemed to have done the act on Crown Lands.

Failure or refusal to comply with order to comply

71.2(1) If a person to whom an order to comply is directed fails or refuses to comply in whole or in part with the order, in the time period set out in the order, the Minister may enter on the Crown Lands, together with such persons, materials and equipment as the Minister considers necessary, using the force the Minister considers necessary, and may take such further action the Minister considers necessary to effect compliance with or to carry out the order.

71.2(2) Without limiting the generality of subsection (1), the Minister may take any one or more of the following actions to effect compliance with or to carry out an order to comply:

(a) take possession of any property or thing referred to in subsection 71(1) that is constructed, placed, left, abandoned or disposed of on Crown Lands;

(b) restore the Crown Lands to a condition as nearly as practicable as they were before the unauthorized occupation or possession referred to in subsection 71(1);

(d) remove any property or thing referred to in subsection 71(1) that is abandoned or disposed of on Crown Lands;

(e) in any manner he or she sees fit, dispose of any property or thing referred to in subsection 71(1) that is constructed, placed, left, abandoned or disposed of on Crown Lands; and

(f) carry out other measures, specified in the order, in order to effect compliance with subsection 24(1.1), 25(3), 26(6) or 71(1).

71.2(3) If the Minister takes possession of any property or thing referred to in subsection 71(1), the property or thing, despite section 56.5, becomes the property of the Crown and the Minister may dispose of it in the manner and at the time the Minister sees fit.

71.2(4) Before the disposal of any property or thing referred to in subsection 71(1) under an order to comply in respect of which notice is given under paragraph 71.1(4)(c), the Minister shall publish a notice of intention to dispose of the property or thing at least one month before the date of the disposition in at least one publication having general circulation in the area in which the Crown Lands to which the order relates are situated.

71.2(5) On written demand of the Minister, any cost, expense, loss, damages or charge incurred by the Minister while acting to effect compliance with or carrying out an order to comply shall be the liability of and paid by the person who failed or refused to comply with the order.

71.2(6) If more than one person has failed or refused to comply with an order to comply, those persons are jointly and severally liable.

71.2(7) If any cost, expense, loss, damages or charge referred to in subsection (5) becomes a debt due to the Crown, the Minister may prepare and file with the clerk of The Court of Queen’s Bench of New Brunswick a certificate certifying the amount of the costs, expenses, loss, damages or charges that the person is required to pay.

71.2(8) A certificate filed with the clerk of The Court of Queen’s Bench of New Brunswick has the same force and effect as if it were a judgment of The Court of Queen’s Bench of New Brunswick for the recovery of a debt in the amount specified in the certificate.

71.2(9) All reasonable costs and charges attendant on the preparation and filing of a certificate may be recovered as if the amount had been included in the certificate.

71.2(10) From the date on which an amount owed to the Crown under this section is required to be paid, the amount bears interest at the rate prescribed by regulation.

Disposal of property with minimal value

71.3 Despite any other provision of this Act, the Minister may remove or dispose of in any manner the Minister sees fit any property or thing abandoned, placed or left on Crown Lands if, in the opinion of the Minister, the value of the property or thing is $500 or less.

Danger to public safety, public health or the environment

71.4(1) If the Minister is satisfied that failure to act immediately would constitute a danger to public safety, public health or the environment, the Minister may, without legal process and notwithstanding section 71.1, enter on Crown Lands, together with such persons, materials and equipment as the Minister considers necessary, using the force the Minister considers necessary, and may take such further action the Minister considers necessary to eliminate or reduce the danger to public safety, public health or the environment.

71.4(2) The Minister may recover from the person responsible for the danger to public safety, public health or the environment the cost of any destruction, disposal or other action taken by the Minister to eliminate or reduce the danger to public safety, public health or the environment.

Posting of Crown Lands to protect public safety, public health and the environment

71.5(1) If, in the Minister’s opinion, posting of Crown Lands is required in order to protect public safety, public health or the environment, the Minister may cause to be posted or erected on the Crown Lands signs or notices prohibiting, controlling or governing any use or activity on Crown Lands.

71.5(2) No person, without lawful authority, shall

(a) enter, occupy or use Crown Lands in contravention of a sign or notice if the sign or notice has been posted or erected pursuant to subsection (1),

(b) damage, deface or remove a sign or notice posted or erected by the Minister pursuant to subsection (1), or

71.5(3) Paragraph (2)(a) does not apply to

(a) an inspector designated under the Clean Environment Act, the Clean Air Act or the Clean Water Act or an officer as defined in the Health Act,

(b) a person carrying out his or her duties as an employee or agent of the Department of Natural Resources,

(c) a person exercising his or her responsibilities, duties and powers under another Act of the Legislature or of Canada, or

(d) any other person who is providing assistance in the case of an emergency.

71.5(4) A person who violates or fails to comply with subsection (2) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.

71.5(5) In a prosecution for an offence under this section,

(a) the posting or erecting of a sign or notice under this section that shows the Province of New Brunswick galley logo and bears the inscription “Department of Natural Resources” or “Natural Resources” is, in the absence of evidence to the contrary, proof that the sign or notice was posted or erected under the authority of this section, and

(b) evidence that the sign or notice was in existence both before and after the conduct in question is, in the absence of evidence to the contrary, proof that it was in existence at all material times.

8 Section 72 of the Act is repealed.

9 Subsection 80(3) of the Act is repealed and the following is substituted:

80(3) In a prosecution for an offence under this section,

(a) the posting or erecting of a sign, notice or barricade under this section that shows the Province of New Brunswick galley logo and bears the inscription “Department of Natural Resources” or “Natural Resources” is, in the absence of evidence to the contrary, proof that the sign, notice or barricade was posted or erected under the authority of this section, and

(b) evidence that the sign, notice or barricade was in existence both before and after the conduct in question is, in the absence of evidence to the contrary, proof that it was in existence at all material times.

10 Subsection 95(1) of the Act is amended

(a) by adding after paragraph (c) the following:

(c.1) prescribing the terms, conditions and reservations applicable to a right-of-way or easement with respect to Crown Lands;

(c.2) prescribing the terms, conditions and reservations applicable to a licence of occupation with respect to Crown Lands;

(b) in paragraph (o) by striking out “section 60” and substituting “section 60 or subsection 71.2(10)”.