Bill 48 - An Act to Amend the Mining Act

BILL 48

An Act to Amend the Mining Act

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

1 The Mining Act, chapter M-14.1 of the Acts of New Brunswick, 1985, is amended by adding after Part XII the following:

PART XII.1

ACQUISITION OF PRIVATE LANDS

Definitions for this Part

112.01 The following definitions apply in this Part.

“applicant” means the holder of a mineral claim. (demandeur)

“application” means an application for a vesting order. (demande)

“Court” means The Court of Queen’s Bench of New Brunswick and includes a judge of that court. (Cour)

“owner” means the owner of private land that is the subject of an application. (propriétaire)

Expropriation Act does not apply

112.02( 1) The only recourse available to the holder of a mineral claim who requires private land for the development of a mine or for any purpose connected with or incidental to that mine and is unable to reach an agreement with the owner for the acquisition of the private land is a vesting order issued under this Part by the Mining Commissioner, and the provisions of the Expropriation Act do not apply.

112.02( 2) The Mining Commissioner shall, on application, hear and determine whether or not the private land should be vested in the applicant and if so, the Mining Commissioner shall determine the amount of compensation to be paid in accordance with this Part and not in accordance with the Expropriation Act.

Application for vesting order

112.03( 1) If a holder of a mineral claim requires private land for the development of a mine or for any purpose connected with or incidental to that mine and no agreement can be reached with the owner for the acquisition of the private land, the holder of the mineral claim may apply to the Mining Commissioner for the issuance of a vesting order.

112.03( 2) An application shall include the following:

(a) the name of the applicant;

(b) the name of the owner;

(d) if the private land is registered under the Registry Act, a copy of the deed to the property and the Schedule “A” description of that property or, if the title to the private land is registered under the Land Titles Act, a copy of the certificate of registered ownership and the property identifier numbers assigned to the private land by Service New Brunswick;

(e) a document indicating any known encumbrances on the private land;

(f) a statement setting out in detail the reasons for the application and explaining the purpose for which the applicant requires the private land;

(g) a copy of the proposed agreement or the details of the proposed agreement;

(h) the amount of compensation offered by the applicant to the owner; and

(i) any other supporting documentation or pertinent information.

112.03( 3) The holder of the mineral claim shall serve by personal service a copy of the application on the owner.

Date, time and place of hearing

112.04( 1) The Mining Commissioner shall, not later than 15 days after receiving the application, set a date, time and place to hear the application, and the hearing shall occur not later than 60 days after receiving the application.

112.04( 2) The Mining Commissioner shall notify the applicant, the owner, the Recorder and any person who, in the opinion of the Mining Commissioner, is an interested person of the date, time and place of the hearing.

112.04( 3) The Mining Commissioner shall publish a notice of the hearing in a newspaper having general circulation in the area where the private land is located.

112.04( 4) The notice of the hearing shall contain

(a) a notice that the applicant has applied for the issuance of a vesting order,

(b) the name of the applicant,

(d) a description of the private land sufficient to identify the private land,

(e) a statement explaining that any person claiming to have an interest under the Marital Property Act with respect to the private land sought to be acquired by an applicant and any person claiming to have a right, title, interest, mortgage, judgment or lien on the private land sought to be acquired by an applicant is entitled to appear and be heard in person or by legal counsel at the hearing,

(f) the date, time and place of the hearing, and

(g) any other information the Mining Commissioner considers relevant.

Interested person

112.05 A person claiming to have an interest under the Marital Property Act with respect to the private land sought to be acquired by an applicant and a person claiming to have a right, title, interest, mortgage, judgment or lien on the private land sought to be acquired by an applicant is entitled to appear and be heard in person or by legal counsel.

Notice by registered mail

112.06 Any notice or direction given under this Part shall be sent by registered mail and a notice or direction is deemed to be received on the fifth day after it is mailed.

Summary hearing

112.07 The Mining Commissioner may, with the written consent of the parties, hear and determine the application in a summary manner.

Evidence

112.08 The Mining Commissioner is not bound by the rules of evidence that apply to a court proceeding and has the power to administer oaths and affirmations for the purposes of a hearing under this Part.

Irregularities

112.09 No proceedings under this Part are invalid by reason of any defect in form or of any technical irregularity.

Hearing may be conducted in absence of party

112.1 If the Mining Commissioner is satisfied that a party has received notice of the hearing, the Mining Commissioner may proceed to conduct the hearing and to make a determination in the absence of that party.

Extension and abridgement of time

112.11 The Mining Commissioner may extend the time fixed for doing anything in relation to an application, whether or not the time fixed has expired, and the Mining Commissioner may abridge the time fixed for doing anything in relation to an application.

Engagement of experts

112.12 The Mining Commissioner may engage the services of advisers and persons providing special, technical or professional knowledge or services to assist the Mining Commissioner in relation to an application or a hearing under this Part.

Decision of Mining Commissioner

112.13( 1) After hearing the application, the Mining Commissioner may

(a) dismiss the application if the applicant fails to demonstrate, to the Mining Commissioner’s satisfaction, that

( i) the private land is required for the purpose of the mine,

( ii) all reasonable efforts have been made to reach an agreement with the owner for the acquisition of the private land, and

( iii) it is in the public interest that the vesting order be issued, or

(b) allow the application in whole or in part and vest the private land in the applicant in fee simple by a vesting order.

112.13( 2) A vesting order shall contain:

(a) a statement indicating that the private land vests in the applicant in fee simple, free and clear from all encumbrances, other than a right-of-way or easement for the conveyance, transmission or transportation of water, oil, gas, electricity or telecommunication or for the disposal of sewage or any other easement or right-of-way, however created, on, over or in respect of the private land;

(b) a provision requiring the applicant to pay all debts, liabilities and taxes owing on the private land;

(d) a provision specifying the form and manner in which the applicant shall provide proof of payment of the debts, liabilities, taxes and compensation for the purpose of registering the vesting order; and

(e) any other provision for the disposal of the matter that the Mining Commissioner considers just and equitable.

112.13( 3) Within 60 days after the completion of the hearing, the Mining Commissioner shall render a written decision together with reasons for the decision and shall serve by personal service a copy of the decision and the reasons on the owner, the applicant and the Recorder.

Compensation - owner

112.14 When determining the amount of compensation to be paid to the owner, the Mining Commissioner shall take into account the following:

(a) any amount offered by the applicant to the owner before the applicant submitted the application;

(b) any interest under the Marital Property Act with respect to the private land sought to be acquired;

(d) the amount of the tax and interest that will be due and payable under the Real Property Tax Act if the private land ceases to be registered under the farm land identification program established under that Act as a result of the issuance of a vesting order;

(e) the owner’s reasonable costs of finding land to replace the private land vested in the applicant and, if the owner’s residence is located on the private land, the reasonable costs of finding another residence and an allowance to compensate for the inconvenience of finding another residence;

(f) reasonable relocation costs, including moving, legal and survey costs and other non-recoverable expenditures incurred in acquiring other land;

(g) if the owner carried on a business on the private land at the date of the hearing,

( i) damages for business loss resulting from the relocation of the business made necessary by the vesting order, or

( ii) when the Mining Commissioner is of the opinion that it is not feasible for the owner to relocate the owner’s business, an additional amount not exceeding the value of the goodwill of the business;

(h) an allowance for improvements, the value of which is not reflected in the market value of the private land;

(i) if only a portion of the private land vests to the applicant, damages for any adverse effect to the remaining portion of the private land that did not vest to the applicant; and

(j) any other factors the Mining Commissioner considers relevant.

Compensation - tenant

112.15 If a tenant occupies private land that is the subject of an application, the Mining Commissioner shall, when determining the amount of compensation to be paid to the tenant, take into account the costs and allowances referred to in paragraphs 112.14(e), (f), (g) and (h) as is appropriate having regard to

(a) the length of the term of the lease,

(b) the portion of the term remaining,

(d) in the case of a business, the nature of the business, and

(e) the extent of the tenant’s investment in the private land.

Time limit for registration

112.16( 1) In order for the vesting order to come into effect, the applicant shall submit the vesting order for registration

(a) if an application has not been made to the Court to review and set aside the Mining Commissioner’s decision, the vesting order or any provision of the vesting order, within 30 days after the period referred to in subsection 114(1) has expired, or

(b) if an application is made to the Court to review and set aside the Mining Commissioner’s decision, the vesting order or any provision of the vesting order,

( i) within 30 days after that application is abandoned, withdrawn, discontinued or dismissed, or

( ii) within the period of time determined by the Court.

112.16( 2) If the applicant fails to submit the vesting order for registration within the period referred to in subsection (1), the vesting order is null, void and of no effect and the applicant shall not apply for the issuance of another vesting order with respect to the private land.

Pre-registration requirements

112.17 Prior to submitting a vesting order for registration, the applicant shall

(a) pay all debts, liabilities and taxes owing on the private land,

(b) pay the amount of compensation ordered by the Mining Commissioner to the owner and, if there is a tenant, the tenant, and

(c) provide the registrar of deeds for the county in which the private land is located or the registrar of land titles for the land registration district in which the private land is located, as the case may be, with proof of payment of the debts, liabilities, taxes and compensation in the form and manner required by the Mining Commissioner.

Effect of registration

112.18( 1) A vesting order comes into effect on its registration in the registry office established under the Registry Act for the county in which the private land is located or in the land titles office established in the Land Titles Act for the district in which the private land is located, as the case may be.

112.18( 2) On registration of a vesting order, the private land is vested in the applicant in fee simple, free and clear from all encumbrances, other than a right-of-way or easement for the conveyance, transmission or transportation of water, oil, gas, electricity or telecommunication or for the disposal of sewage or any other easement or right-of-way, however created, on, over or in respect of the private land.

112.18( 3) A vesting order shall be deemed to be an instrument for the purposes of the Registry Act and the Land Titles Act.

112.18( 4) Section 44 of the Registry Act and section 55 of the Land Titles Act do not apply to the registration of a vesting order.

Notify Recorder of registration

112.19 Within 30 days after the registration of the vesting order, the applicant shall notify the Recorder of the registration.

Costs and expenses

112.2( 1) The applicant is liable to pay the costs and expenses incurred by the owner and the Minister in relation to an application and a hearing under this Part.

112.2( 2) The costs and expenses incurred by the owner and the Minister in relation to an application and a hearing under this Part include, but are not limited to, the following:

(a) costs of matters preliminary to the hearing;

(b) expenditures for services and facilities;

(c) the remuneration to the Mining Commissioner and any other person the Mining Commissioner considers necessary to assist him or her in relation to the application and the hearing;

(d) legal costs; and

(e) the payment of appearance fees and expenses of witnesses.

Security for costs and expenses

112.21( 1) Prior to the hearing, the applicant shall, within the period determined by the Mining Commissioner, deposit security with the Mining Commissioner in the form and amount the Mining Commissioner considers appropriate for the payment of costs and expenses incurred by the owner and the Minister.

112.21( 2) If the security deposited by the applicant is sufficient to reimburse the owner and the Minister for the costs and expenses incurred by them, the Mining Commissioner shall return to the applicant any amount provided as security for costs and expenses that is not required.

112.21( 3) If the security deposited by the applicant is insufficient to reimburse the owner for the costs and expenses incurred by the owner, the Minister shall, without delay, reimburse the owner for those costs and expenses and the Minister may recover the amount of the reimbursement from the applicant in accordance with section 112.22.

Certificate for costs and expenses

112.22( 1) If the security deposited by the applicant is insufficient to reimburse the Minister for the costs and expenses incurred by the Minister and the amount paid by the Minister under subsection 112.21(3), the Minister may send a registered letter to the applicant demanding payment within 30 days after the date the letter is sent.

112.22( 2) If payment is not received within the period referred to in subsection (1), the Minister may issue a certificate stating

(a) the amount of the costs and expenses incurred by the Minister and the amount paid by the Minister under subsection 112.21(3), including interest, and

(b) the name and address of the applicant.

112.22( 3) The certificate may be filed in the Court and shall be entered and recorded in the Court and, when so entered and recorded, becomes a judgment of the Court and may be enforced as a judgment obtained in the Court by the Minister against the applicant for a debt of the amount specified in the certificate.

112.22( 4) All reasonable costs and charges attendant on the filing, entering and recording of the certificate shall be recovered as if the amount had been included in the certificate.

112.22( 5) From the date on which an amount owed to the Minister under this Part is required to be paid, the amount bears interest at the rate prescribed in subsection 9(1) of New Brunswick Regulation 84-247 under the Revenue Administration Act.

2 Subsection 113(1) of the Act is repealed and the following is substituted:

113( 1) Subject to other provisions of this Act respecting the manner of filing a notice of dispute, a person seeking redress with respect to any question, disagreement, matter or claim referred to in subsection 13(1), other than a matter concerning the acquisition of private lands under Part XII.1, may apply to the Mining Commissioner for an adjudication under this Part.

3 Section 114 of the Act is amended

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

114( 1) A party to any question, disagreement, matter or claim may, within 30 days after being notified of a decision or order of the Mining Commissioner under section 112.13 or subsection 113(8), as the case may be, apply by Notice of Application to a judge of The Court of Queen’s Bench of New Brunswick to review and set aside the order or decision on the grounds of any error of law or of jurisdiction.

(b) by repealing subsection (7) and substituting the following:

114( 7) When an application concerning a decision or order of the Mining Commissioner under subsection 113(8) is dismissed, the judge shall make an order establishing the date on which the decision or order of the Mining Commissioner is to be effective.