BILL 106

An Act to Amend the Marshland Infrastructure Maintenance Act

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

1 Section 1 of the Marshland Infrastructure Maintenance Act, chapter 35 of the Acts of New Brunswick, 2013, is amended by adding the following definition in alphabetical order:

“arbitral tribunal” means a sole arbitrator or a panel of three arbitrators. (tribunal d’arbitrage)

2 Section 3 of the Act is amended by striking out “or operate” and substituting “, operate or decommission”.

3 Section 4 of the Act is amended by striking out “or operate” and substituting “, operate or decommission”.

4 The Act is amended by adding after section 14 the following:

Land acquired by purchase or expropriation

14.1( 1) The Minister may acquire land, by purchase or expropriation, for the purposes of a marshland infrastructure.

14.1( 2) The Minister shall give written notice to the owner of the land and to the occupier of the land, if any, of the Minister’s intention to purchase land under this section, and the notice shall include

(a)  an amount that the Minister considers to be compensation that fairly reflects the value of the owner’s interest in the land, and

(b)  any other terms and conditions under which the land is to be purchased that the Minister considers necessary.

14.1( 3) If the Minister and the owner of the land have not agreed on the terms and conditions under which the land is to be purchased within 12 months of the Minister giving notice under subsection (2), or at an earlier time when, in the opinion of the Minister, an agreement cannot be reached, the Minister may expropriate as defined in the Expropriation Act and carry out the expropriation in accordance with that Act.

14.1( 4) For greater certainty,

(a)  an owner who reaches an agreement to sell land to the Minister under this section is entitled to submit a claim for compensation under section 14.11, and

(b)  an owner who does not reach an agreement to sell land to the Minister under this section and whose land is expropriated is not be entitled to submit a claim for compensation under section 14.11.

Compensation for damages

14.11( 1) The Minister shall compensate a person for damages suffered by virtue of anything done under this Act.

14.11( 2) A person claiming compensation under this Act shall deliver to the Minister a written claim setting out full particulars of the claim and the person’s right and title to the compensation.

Arbitration

14.2( 1) If the Minister does not agree with the compensation claimed under subsection 14.11(2), the Minister shall offer, within 120 days after receiving the claim, the amount that the Minister considers to be reasonable compensation and, at the same time, give notice to the person claiming compensation that the matter of compensation will be submitted to arbitration if the amount of the offer is not accepted within 120 days after the date the person receives the offer.

14.2( 2) In determining what is reasonable compensation referred to in subsection (1), the Minister shall consider, among other things, the value of the land having regard to its present use.

14.2( 3) If the person claiming compensation does not accept the offer of the Minister within the time referred to in subsection (1), the Minister shall submit the matter of compensation to arbitration and the Minister and the person claiming compensation shall be deemed to have entered into a written arbitration agreement.

The Court of Queen’s Bench may extend time limit

14.21 On an application by the Minister or a person claiming compensation, The Court of Queen’s Bench of New Brunswick may extend the time limit under subsection 14.2(1), either before or after the expiry of the time limit.

Application of Arbitration Act

14.3 The Arbitration Act applies to an arbitration under this Act, but, if there is a conflict between a provision of this Act and a provision of the Arbitration Act, the provision of this Act prevails.

Exclusive jurisdiction of arbitral tribunal

14.4( 1) An arbitral tribunal has exclusive jurisdiction to hear and determine all matters of compensation under this Act, and no court shall intervene in the matter of compensation, except

(a)  to assist the arbitration process,

(b)  to prevent unfair or unequal treatment of a party to an arbitration agreement, and

(c)  to enforce awards.

14.4( 2) No person shall apply for compensation under Part 2 of the Expropriation Act or any other Act for damages suffered by virtue of anything done under this Act.

Appointment of arbitral tribunal

14.5( 1) Within ten days after the date on which the Minister submits a matter to arbitration, the Minister and the person claiming compensation shall appoint a sole arbitrator.

14.5( 2) If the Minister and the person claiming compensation are unable to agree on the appointment of a sole arbitrator within the time period referred to in subsection (1), an arbitral tribunal consisting of three arbitrators shall be appointed as follows:

(a)  one by the Minister;

(b)  one by the person claiming compensation; and

(c)  one by the arbitrators appointed under paragraphs (a) and (b) who shall act as chair of the arbitral tribunal.

14.5( 3) The Minister and the person claiming compensation shall each appoint an arbitrator within ten days after the expiry of the time period referred to in subsection (1).

14.5( 4) If the Minister or the person claiming compensation fails to appoint an arbitrator within ten days after the expiry of the time period referred to in subsection (1), The Court of Queen’s Bench of New Brunswick shall appoint an arbitrator on behalf of the Minister or the person, as the case may be.

14.5( 5) If the arbitrators appointed under paragraphs (2)(a) and (b) are unable to agree on the appointment of the chair within 20 days after the appointment of the second arbitrator, The Court of Queen’s Bench of New Brunswick shall appoint the chair on their behalf.

Fees and expenses of arbitral tribunal

14.6( 1) If an arbitral tribunal consists of a sole arbitrator, the Minister is responsible for the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.

14.6( 2) If an arbitral tribunal consists of three arbitrators,

(a)  the Minister is responsible for

( i) the fees and expenses of the chair,

( ii) the fees and expenses of the arbitrator appointed by the Minister, and

( iii) any other expenses related to the arbitration, and

(b)  the person claiming compensation is responsible for the fees and expenses of the arbitrator appointed by that person.

Decision of arbitral tribunal

14.7 An arbitral tribunal shall make a decision on the matter of compensation within one year after the date on which the Minister submits a matter of compensation to arbitration.

Arbitral tribunal may extend the time for making a decision

14.8 An arbitral tribunal may extend the time for making a decision referred to in section 14.7 before the expiry of the time by giving notice of the extension with reasons to the Minister and to the person claiming compensation.

Vesting of land; sale or lease of land

14.9 All land that is owned by the Department of Transportation and Infrastructure and was acquired for the purposes of a marshland infrastructure is vested in the Crown in right of the Province and, despite section 55 of the Financial Administration Act and any other Act, when the land is no longer required, the Minister, with the approval of the Lieutenant-Governor in Council, may enter into an agreement for the sale or lease of the land and may convey the land by a deed of conveyance, lease or other instrument under the Great Seal of the Province and signed by the Minister, and the proceeds of the sale or leasing shall be accounted for as public money or, on the direction of the Lieutenant-Governor in Council, deposited to the credit of the Land Management Fund established under the Public Works Act.