Bill 68 - Marshland Infrastructure Maintenance Act

BILL 68

Marshland Infrastructure Maintenance Act

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

Definitions

1 The following definitions apply in this Act.

“engineer” means an engineer as defined under the Engineering and Geoscientist Professionals Act. (ingénieur)

“marshland” means land lying on the sea coast or on the bank of a tidal river that is below the level of the highest tide and is protected by marshland infrastructure. (terrain marécageux)

“marshland infrastructure” includes dykes, aboiteaux, dams and dam control buildings, breakwaters, canals, ditches, drains, roads, culverts, bridges, fencing, crossings and other structures, excavations and facilities for the improvement, development, maintenance or protection of marshland that are owned, controlled or managed by the Department of Agriculture, Aquaculture and Fisheries. (infrastructure pour terrain marécageux)

“Minister” means the Minister of Agriculture, Aquaculture and Fisheries and includes any person designated by the Minister to act on behalf of the Minister. (ministre)

Application of the Act

2 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Power of Minister respecting marshland infrastructure

3 If, in the opinion of the Minister, it is in the interest of the Province, the Minister may construct, reconstruct, relocate, recondition, repair, maintain or operate a marshland infrastructure.

Agreements of Minister respecting marshland infrastructure

4 The Minister may enter into an agreement with Canada or any person to fund, construct, reconstruct, relocate, recondition, repair, maintain or operate a marshland infrastructure.

Power of entry

5( 1) In the discharge of his or her duties under this Act, the Minister or a person authorized by the Minister may enter on and pass through private property without the consent of the owner without being liable for trespass.

5( 2) Except in a situation prescribed by regulation, when acting under subsection (1), the Minister shall provide notice to the owner or occupier of the private land in the form and manner prescribed by regulation and with the content prescribed by regulation.

Location of marshlands and marshland infrastructure

6 Maps indicating the location of marshlands and marshland infrastructure shall be available for viewing by the public at the Minister’s office in Fredericton and at the Moncton regional office of the Department of Agriculture, Aquaculture and Fisheries during normal business hours and shall be published on the Internet.

Publication in The Royal Gazette

7 The maps referred to in section 6 shall be published in The Royal Gazette on the coming into force of this Act and any change to a map shall be published in The Royal Gazette at least 30 days before the coming into force of the change.

Prohibition

8( 1) Subject to subsection (2), no person shall cause damage to or alter a marshland infrastructure.

8( 2) If the marshland infrastructure is an aboiteau, dike, dam or dam control building, no person shall

(a) cause damage to or alter the aboiteau, dike, dam or dam control building so that, in the opinion of an engineer, it could endanger the structural reliability of the aboiteau, dike, dam or dam control building, as the case may be, or

(b) otherwise cause damage to or alter the aboiteau, dike, dam or dam control building, as the case may be.

Ministerial Order

9( 1) Subject to subsection (2), if the Minister is satisfied that a marshland infrastructure has been damaged or altered, the Minister may issue a Ministerial Order requiring the person to whom it is directed to repair or restore the marshland infrastructure to the condition it was in before it was damaged or altered, to the extent practicable, in accordance with the directions set out in the order.

9( 2) If the Minister is satisfied that a marshland infrastructure that is an aboiteau, dike, dam or dam control building has been damaged or altered so that, in the opinion of an engineer, it could endanger the structural reliability of the aboiteau, dike, dam or dam control building, as the case may be, the Minister may issue a Ministerial Order requiring the person to whom it is directed to repair or restore the aboiteau, dike, dam or dam control building, as the case may be, to the condition it was in before it was damaged or altered, to the extent practicable, in accordance with the directions set out in the order.

9( 3) A Ministerial Order may include a compliance schedule requiring the completion of specified stages of repair or restoration by specified dates.

9( 4) A single Ministerial Order may be directed to one or more persons.

9( 5) Except in the case of an emergency, a Ministerial Order, including an amendment to or a revocation of the Ministerial Order, shall be in writing and shall include the reasons for the order.

9( 6) When a Ministerial Order is served on a person to whom it is directed, that person shall comply with the order.

9( 7) A Ministerial Order remains in effect until revoked by the Minister.

9( 8) A Ministerial Order is binding on the heirs, successors, executors, administrators and assigns of the persons to whom it is directed.

9( 9) If, in the opinion of the Minister, the action taken under a Ministerial Order is not adequate, the Minister may order the taking of any remedial action the Minister considers necessary.

Non-compliance with Ministerial Order

10 If a person to whom a Ministerial Order is directed fails or refuses to comply in whole or in part with the order or part of the order, the Minister may enter on any land or premises, together with the persons, materials and equipment the Minister considers necessary, using the force the Minister considers necessary, and may take any further action the Minister considers necessary to effect compliance with or to carry out the order.

Costs incurred by Minister

11( 1) Any cost, charge, loss, damage or expense incurred by the Minister while acting under section 10 shall be the liability of and paid by any person who failed or refused to comply with a Ministerial Order and becomes a debt due to the Crown.

11( 2) If two or more persons have failed or refused to comply with a Ministerial Order, those persons are jointly and severally liable under subsection (1).

Recovery of costs by Minister

12( 1) If the cost of carrying out work becomes a debt due to the Crown under subsection 11(1), the Minister may issue a certificate stating the amount of the debt due and the name of the debtor.

12( 2) A certificate issued under subsection (1) may be filed in The Court of Queen’s Bench of New Brunswick and entered and recorded in the Court and when entered and recorded may be enforced as a judgment obtained in the Court by the Crown in right of the Province against the person named in the certificate for a debt of the amount specified in the certificate.

12( 3) All reasonable costs and charges attendant upon the filing, entering and recording of a certificate under subsection (2) may be recovered as if the amount had been included in the certificate.

Service of Ministerial Order

13( 1) A Ministerial Order shall be sufficiently served for the purposes of this Act if

(a) it is served in the manner in which personal service may be made under the Provincial Offences Procedure Act, or

(b) it is mailed by registered mail to the latest known address of the person to whom the Ministerial Order is directed.

13( 2) Service by registered mail shall be deemed to have been effected four days after the date of mailing.

Proof

14( 1) Proof of service of a Ministerial Order in either manner provided for in subsection 13(1) may be made by a certificate or an affidavit purporting to be signed by the Minister, naming the person on whom service was made and specifying the time, place and manner of the service.

14( 2) A document that purports to be a certificate or an affidavit of the Minister to the effect that the service was made in the manner provided for in subsection 13(1)

(a) shall be admissible in evidence without proof of the signature, and

(b) is, in the absence of any evidence to the contrary, proof that the person named in the certificate or affidavit was served with the Ministerial Order referred to in the certificate or affidavit.

14( 3) In any prosecution for an offence under this Act where proof of the service is made as set out in subsection (1), the burden of proving that one is not the person named or referred to in the certificate or affidavit shall be on the person charged.

14( 4) A Ministerial Order served under the provisions of this Act and purporting to be signed by the Minister

(a) shall be admissible in evidence without proof of the signature, and

(b) is, in the absence of any evidence to the contrary, proof of the facts stated in the Ministerial Order.

Notification with respect to development on marshland

15 If a municipality or a regional service commission receives an application for the granting of a building permit or a development and building permit with respect to development that is within a marshland that is identified in the maps referred to in section 6, the municipality or the regional service commission shall notify the Minister of the application as soon as possible.

Immunity

16( 1) No action for damages or other proceeding shall be taken against the Crown in right of the Province, the Minister or any other person with respect to anything done or purported to be done in good faith or with respect to anything omitted to be done in good faith under this Act.

16( 2) No action for damages or other proceeding shall be taken against the Crown in right of the Province for any damages caused by flooding as a result of the failure of a marshland infrastructure.

Advisory committee

17 The Minister may establish advisory committees that the Minister considers necessary for the better administration of this Act.

Offences and penalties

18( 1) A person who violates or fails to comply with subsection 8(1) or paragraph 8(2)(b)commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.

18( 2) A person who violates or fails to comply with paragraph 8(2)(a) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category J offence.

18( 3) A person who fails or refuses to comply in whole or in part with a Ministerial Order issued under subsection 9(1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.

18( 4) A person who fails or refuses to comply in whole or in part with a Ministerial Order issued under subsection 9(2) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category J offence.

Regulations

19 The Lieutenant-Governor in Council may make regulations

(a) prescribing the form and content of a notice under section 5, as well as the manner and time of providing the notice;

(b) providing that the form and content of a notice under section 5, as well as the manner and time of providing the notice, may vary in different situations;

(d) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;

(e) respecting any matter that the Lieutenant-Governor in Council considers necessary for the administration of this Act.

TRANSITIONAL PROVISIONS, REPEAL AND COMMENCEMENT

Marshland Reclamation Commission

20( 1) On the commencement of this section, the Marshland Reclamation Commission established under section 6 of the Marshland Reclamation Act is dissolved.

20( 2) The appointments of all persons who hold office as a member of the Marshland Reclamation Commission immediately before the commencement of this section are revoked.

20( 3) All contracts, agreements and orders relating to allowances, fees, salaries, expenses, remuneration and compensation to be paid to the members of the Marshland Reclamation Commission dissolved under subsection (1) are null and void.

20( 4) Despite the provisions of any contract, agreement or order, no allowance, fee, salary, expenses, remuneration or compensation shall be paid to any member of the Marshland Reclamation Commission dissolved under subsection (1).

20( 5) No action, application or other proceeding lies or shall be instituted against the Minister or the Crown in right of the Province as a result of the dissolution of the Marshland Reclamation Commission or the revocation of appointments under subsection (2).

Marsh Body

21( 1) On the commencement of this section, any Marsh Body incorporated under section 11 of the Marshland Reclamation Act is dissolved.

21( 2) The appointments of all persons who hold office as a member of a Marsh Body immediately before the commencement of this section are revoked.

21( 3) All contracts, agreements and orders relating to allowances, fees, salaries, expenses, remuneration and compensation to be paid to the members of a Marsh Body dissolved under subsection (1) are null and void.

21( 4) Despite the provisions of any contract, agreement or order, no allowance, fee, salary, expenses, remuneration or compensation shall be paid to any member of a Marsh Body dissolved under subsection (1).

21( 5) No action, application or other proceeding lies or shall be instituted against the Minister or the Crown in right of the Province as a result of the dissolution of a Marsh Body or the revocation of appointments under subsection (2).

Repeal of Marshland Reclamation Act and regulation

22( 1) The Marshland Reclamation Act, chapter 189 of the Revised Statutes, 2011, is repealed.

22( 2) New Brunswick Regulation 82-5 under the Marshland Reclamation Act is repealed.

Commencement

23 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.