63

 

 

First Session, 48th General Assembly

65 Elizabeth II, 2016

BILL 63

AN ACT TO AMEND THE LANDS ACT

Received and Read the First Time.................................................................................................

Second Reading.................................................................................................................................

Committee..........................................................................................................................................

Third Reading.....................................................................................................................................

Royal Assent......................................................................................................................................

HONOURABLE EDDIE JOYCE

Minister of Municipal Affairs

Ordered to be printed by the Honourable House of Assembly

 

EXPLANATORY NOTES

This Bill would amend the Lands Act to

·         update the definition of the word "surveyor";

·         increase the size of the area of Crown lands which the minister may grant without the approval of the Lieutenant-Governor in Council;

·         require all new shoreline reservations to be 15 metres wide or greater;

·         modify the circumstances under which a grant, lease or licence relating to a shoreline reservation may be issued;

·         change the process for an application for a grant, lease or licence of Crown lands;

·         remove the requirement for an order reserving Crown lands to be published in the Gazette;

·         change the circumstances under which a free grant of Crown lands may be issued;

·         reduce the time permitted for an extension to register the plan of a survey;

·         allow the minister in all circumstances to rectify, without the approval of the Lieutenant-Governor in Council, an error that resulted in inconsistent grants, leases or licences being issued for the same Crown lands;

·         allow the minister to waive a condition contained in a grant of Crown lands up to 30 hectares;

·         consolidate the unauthorized uses of Crown lands under this Act;

·         expand what is considered an unauthorized structure;

·         reduce the amount of time a person is given to remove an unauthorized structure on Crown lands;

·         allow the minister to remove, demolish or dispose of an unauthorized structure without notice where it is a hazard to public health or safety;

·         clarify a provision respecting adverse possession;

·         narrow the list of persons who require the consent of the Lieutenant-Governor in Council to acquire Crown lands;

·         increase the size of the area of Crown lands which may be transferred to the Crown in right of Canada without the approval of the Lieutenant-Governor in Council;

·         remove the requirement for approval by the Lieutenant-Governor in Council when Crown lands are transferred to another minister;

·         remove the requirement for notice to be given to the occupier of lands where a surveyor or a person installing control survey markers intends to enter those lands;

·         add provisions with respect to the collection of debt;

·         add a requirement to review the Act and the regulations every 5 years; and

·         change the requirements for notice in various sections of the Act.

A BILL

AN ACT TO AMEND THE LANDS ACT

Analysis


        1.   S.2 Amdt.
Definitions

        2.   S.4 R&S
Grants of Crown lands

        3.   S.7 R&S
Reservation of shoreline

        4.   S.8 Amdt.
Reservation of Crown lands

        5.   S.9 Amdt.
Free grants

        6.   S.10 Amdt.
Survey and registration of plan

        7.   S.11 Amdt.
Report of adverse claim

        8.   S.18 Amdt.
Inconsistent grants

        9.   S.20 Amdt.
Waiver of conditions

      10.   S.28 R&S
Boundaries

      11.   S.29.1 Added
Unauthorized use of Crown lands

      12.   Ss.30 to 33 R&S
30.   Court order
31.   Offence
32.   Removal of structure
33.   Stop order

      13.   S.35 Amdt.
Where order not obeyed

      14.   S.36 Amdt.
Adverse possession abolished

      15.   S.37 R&S
Copies of grants, etc.

      16.   S.40 R&S
Conflict of interest

      17.   S.41 R&S
41.   Lieutenant-Governor
        in Council regulations
41.1 Ministerial regulations

      18.   S.45 Amdt.
Minister to issue notice

      19.   S.49 Rep.
Subsequent claim

      20.   S.52.1 Added
Regulations

      21.   S.53 Amdt.
Transfer to Canada

      22.   S.54 R&S
Transfer of land to other ministers

      23.   S.64 Amdt.
Entry on land

      24.   Part VI.1 Added

              PART VI.1
GENERAL

73.1                       Collection of debt
73.2                       Statutory review

      25.   Transitional


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

SNL1991 c36
as amended

        1. Paragraph 2(i) of the Lands Act is repealed and the following substituted:

              (i)  "surveyor" means a surveyor who is a registered member of the Association of Newfoundland Land Surveyors of the Province of Newfoundland under the Land Surveyors Act, 1991.

 

        2. Section 4 of the Act is repealed and the following substituted:

Grants of Crown lands

        4. (1) The minister may issue a grant to a person of an area of Crown lands not exceeding 30 hectares subject to those terms and conditions and subject to the payment of the consideration that the minister may set out in the grant.

             (2)  The minister may, subject to the approval of the Lieutenant-Governor in Council, issue a grant to a person of an area of Crown lands in excess of 30 hectares subject to those terms and conditions and subject to the payment of the consideration that the minister may set out in the grant.

 

        3. Section 7 of the Act is repealed and the following substituted:

Reservation of shoreline

        7. (1) Where Crown lands that border on a lake, pond, river, the seashore or foreshore are granted, leased or licensed under this Part, it is considered, in the absence of an express grant, lease or licence of those Crown lands, that a strip of Crown lands not less than 15 metres wide around and adjoining the lake, pond, seashore or foreshore or along each bank of the river was not intended to pass and did not pass to the grantee, lessee or licensee.

             (2)  A grant, lease or licence of a strip of Crown lands around and adjoining a lake, pond, seashore or foreshore or along each bank of a river that is otherwise reserved under subsection (1) may be issued by the minister under the following circumstances:

             (a)  where an applicant demonstrates that a grant, lease or licence of the land is necessary for the purpose of an industrial undertaking and the grant, lease or licence would not cause undue injury to the rights of others;

             (b)  to enable a person to carry on aquaculture;

             (c)  where a structure that is being used as a residence and was erected before the coming into force of this section intrudes on the reservation, to the extent of the intrusion only; and

             (d)  for the purpose of giving a licence only for the construction of boat houses, wharves, slipways, airplane hangers, recreational trails or other structures for recreational purposes prescribed by the minister to the extent that they intrude on the reservation.

             (3)  A grant, lease or licence under subsection (2) does not convey exclusive hunting or fishing rights, except as provided by the Aquaculture Act, to the grantee, lessee or licensee.

             (4)  A grant, lease or licence issued under paragraph (2)(c) or (d) shall not permit a grantee, lessee or licensee to restrict access to the reservation on the part of the general public by erecting a fence or by other means.

             (5)  The department shall publish the following information with respect to an application made under this section on its website within 5 days of the date the application is received:

             (a)  the exception under which the application is being made;

             (b)  a description of the lands in respect of which the application is being made; and

             (c)  notice that a person who wishes to object to the application must file the objection with reasons for it with the minister within 30 days from the date the notice is posted on the department's website.

             (6)  An applicant for a grant, lease or licence under subsection (2) shall publish a notice of his or her application

             (a)  in the Gazette within 21 days of submitting his or her application; and

             (b)  in any other location the minister considers necessary.

             (7)  The notice required by subsection (6) shall state the information listed in subsection (5) and any other information prescribed by the minister.

             (8)  The minister may include in a grant, lease or licence issued under subsection (2) those terms and conditions that he or she considers necessary.

             (9)  An application under this section is not required where a person makes an application for a grant under subsection 36(3) or 36(4) in respect of lands which include a strip of Crown lands around and adjoining a lake, pond, seashore or foreshore or along each bank of a river that is otherwise reserved under subsection (1).

 

        4. Subsections 8(3) and (4) of the Act are repealed.

 

        5. (1) Subsection 9(1) of the Act is repealed and the following substituted:

Free grants

        9. (1) The minister may grant, free of charge, but subject to the payment of an appropriate administration fee, an area of Crown lands not exceeding 10 hectares for the site of

             (a)  a school; or

             (b)  an undertaking by a city or a municipality as those terms are defined in the Municipalities Act, 1999 which is in the public interest other than economic development.

             (2)  Section 9 of the Act is amended by adding immediately after subsection (2) the following:

             (3)  In this section, "school" means a school other than a private school as defined in the Schools Act, 1997.

 

        6. Subsection 10(3) of the Act is repealed and the following substituted:

             (3)  Notwithstanding subsections (1) and (2), the minister may, on receipt of a request in writing made by an applicant or a person acting on behalf of the applicant before the expiry of the 12 month period immediately following the date of approval of the application, extend the time for registering the plan of the survey to a maximum of 18 months from the date of approval of the application.

 

        7. Subsection 11(1) of the Act is repealed and the following substituted:

Report of adverse claim

      11. (1) A surveyor who is authorized to carry out a survey of Crown lands for the purposes of this Part shall fully investigate whether there exists an adverse claim with respect to the lands.

 

        8. Subsections 18(2) and (3) of the Act are repealed and the following substituted:

             (2)  Where

             (a)  through error, more than one grant, lease or licence inconsistent with each other has been issued for the same Crown lands; and

             (b)  the Crown lands have passed from the original grantee, lessee or licensee or have been improved before the discovery of the error

the minister may, in substitution, assign lands or grant a certificate entitling a person to acquire Crown lands of a value and to an extent that the minister considers just and equitable under the circumstances.

 

        9. Subsections 20(1) and (2) of the Act are repealed and the following substituted:

Waiver of conditions

      20. (1) The minister may waive a condition contained in a grant of Crown lands issued under this Part or a previous Act where the area of land involved does not exceed 30 hectares.

             (2)  The Lieutenant-Governor in Council may waive a condition contained in a grant of Crown lands issued under this or a previous Act where the area of land involved is in excess of 30 hectares.

 

      10. Section 28 of the Act is repealed and the following substituted:

Boundaries

      28. (1) The holders of lands whether or not the lands are held under an assurance from the Crown shall, at all times, either keep up or maintain boundary markers at all corners and angles of the lands held by them and keep the boundary lines through the woods connecting all the corners and angles open and clear to a width of at least one metre.

             (2)  The absence of a boundary marker shall, subject to an existing law relating to trespass by cattle, be a good defence in an action of trespass brought or taken by the holder of the lands.

             (3)  The minister may order a survey of the lands referred to in subsection (1) where the minister is satisfied that the boundary markers which marked the boundaries of the original survey of the lands are no longer in existence, or where in the opinion of the minister it is necessary or desirable to make a survey.

             (4)  Where, in the opinion of the minister, a survey under subsection (3) is necessary because of the failure of a holder to comply with subsection (1), the minister may require the holder to bear the cost of that survey, and may sue for it as if it were a debt due the Crown by the holder.

             (5)  In this section, "boundary marker" means a fence, post, mound, monument, line, iron bar or pin.

 

      11. The Act is amended by adding immediately after section 29 the following:

Unauthorized use of Crown lands

   29.1 (1) A person shall not

             (a)  refuse or neglect to vacate or abandon possession of Crown lands where that person lawfully entered into possession or occupation of the Crown lands and forfeited the right to possession or occupancy;

             (b)  be in possession of Crown lands except in accordance with this Part or another Act permitting occupation or possession of Crown lands for the purposes of that Act;

             (c)  enclose, mark off or take possession of Crown lands except in accordance with this Part or another Act permitting occupation or possession of Crown lands for the purposes of that Act;

             (d)  place, erect or build a structure on Crown lands in respect of which there is not in effect a grant, lease or licence issued under this Part or place, erect or build a structure on Crown lands for which he or she is not the holder of a grant, lease or licence in effect under this Part; or

             (e)  clear Crown lands or build a road on Crown lands in respect of which there is not in effect a grant, lease or licence issued under this Part.

             (2)  In this section, "structure" includes a building, house, cottage, cabin, wharf, dock, boathouse, slipway, tent platform, shelter, enclosure, wall, fence, barrier, gate, trailer, bus, mobile home or other motor vehicle converted for the purpose of habitation, natural or other objects arranged by a person to create a structure, the materials that may be used to place, erect or build a structure and the contents of a structure.

 

      12. Sections 30 to 33 of the Act are repealed and the following substituted:

Court order

      30. Where a person contravenes paragraph 29.1(1)(a) or (b), the minister may apply to a judge for, and the judge, upon proof to his or her satisfaction that the lands were so forfeited and should properly revert to the Crown, or that the person is in possession of Crown lands except in accordance with this Part or another Act permitting occupation or possession of Crown lands for the purposes of that Act, shall order the grantee, lessee, licensee or person in possession, to deliver up the lands to the Crown and to restore the lands to a condition satisfactory to the minister.

Offence

      31. (1) A person who contravenes paragraph 29.1(1)(c) is guilty of an offence and is liable on summary conviction to a fine of not less than $1,000 or to a term of imprisonment not exceeding 3 months or to both the fine and imprisonment.

             (2)  An information or complaint with respect to an offence committed under subsection (1) may be laid or made on or before a day 12 months from the day when the offence first came to the notice of the minister.

Removal of structure

      32. (1) Where a structure is placed, erected or built on Crown lands in contravention of paragraph 29.1(1)(d), the minister may, by written notice, require the person who placed, erected, built, occupies or uses the structure to do one or more of the following within 30 days after service of the notice upon the person:

             (a)  remove the structure from the Crown lands;

             (b)  demolish the structure;

             (c)  otherwise dispose of the structure; or

             (d)  restore the Crown lands to a condition satisfactory to the minister.

             (2)  Notwithstanding subsection (1), the minister may remove, demolish or otherwise dispose of a structure on Crown lands

             (a)  in respect of which there is not in effect a grant, lease or licence issued under this Part; or

             (b)  that was placed, erected or built on Crown lands by a person who is not the holder of a grant, lease or licence issued under this Part,

and restore the Crown lands to a condition satisfactory to the minister without notice under subsection (1) where the structure is a hazard to public health or safety.

             (3)  A notice referred to in subsection (1) may be served on the person to whom it is addressed by delivering it to the person or by leaving it at the person's last or most usual place of residence with a person present there at the time.

             (4)  Where the identity of the person to whom a notice referred to in subsection (1) is directed is not known or the person cannot be found, the minister may post the notice with respect to the structure on the structure and may publish it in a newspaper having general circulation in the area in which the lands are located.

             (5)  A person upon whom a notice under subsection (1) has been served who fails to remove, demolish or otherwise dispose of the structure or restore the Crown lands to a condition satisfactory to the minister within 30 days of service of the notice is liable on summary conviction to a penalty of $25 for each day that the structure remains on the Crown lands.

             (6)  Where a notice referred to in subsection (1) has been served, posted or published and the structure has not been removed, demolished or otherwise disposed of or the Crown lands have not been restored to a condition satisfactory to the minister within 30 days of the service, posting or publishing, the minister or a person acting under the authority of the minister may do one or more of the following:

             (a)  remove the structure from the Crown lands;

             (b)  demolish the structure;

             (c)  otherwise dispose of the structure; or

             (d)  restore the Crown lands to a condition satisfactory to the minister.

             (7)  Where a structure is removed, demolished or otherwise disposed of or the Crown lands are restored to a condition satisfactory to the minister under subsection (2) or (6), the costs and expenses of the removal, demolition, disposition and restoration may be recovered by the minister as a debt due the Crown against the person who placed, erected, built, maintained, occupied or used the structure.

             (8)  The minister may, upon application by a person who claims to be the owner of the structure made before the expiry of the time period provided in this section, extend the period for compliance with this section to a period not to exceed 6 months.

Stop order

      33. (1) Where lands are being cleared or a road or structure is being placed, erected or built on lands in contravention of paragraph 29.1(1)(d) or (e) and the minister is of the opinion that the lands are Crown lands, the minister may order the person responsible to stop clearing, placing, erecting, building or depositing materials and to restore the lands to a condition satisfactory to the minister.

             (2)  An order made under this section shall be signed by the minister and shall be served on the person to whom it is addressed either personally or by certified mail or, where the person engaged in clearing, placing, erecting, building or depositing the materials is not known, by posting a notice on the lands in question.

 

      13. Subsection 35(1) of the Act is repealed and the following substituted:

Where order not obeyed

      35. (1) Where an order made under section 33 is not complied with within the time set out in the order, and a period of 14 days has passed from the time of service or posting of the notice and an appeal has not been commenced, heard or otherwise disposed of under section 34, the minister may carry out the restoration ordered and the cost of the restoration may be recovered by the Crown as a debt from the person on whom the order was served.

 

      14. (1) Subsection 36(2) of the Act is repealed and the following substituted:

             (2)  The period of possession of Crown lands prior to January 1, 1977, which would, by the application of the law pertaining to the acquisition of an interest in land based upon open, notorious and exclusive possession existing prior to the enactment of this section, have been necessary to confer upon a person an interest in that land is considered to be, and always to have been, 20 continuous years immediately prior to January 1, 1977.

 

             (2)  Subsection 36(4) of the Act is repealed and the following substituted:

             (4)  Where the Crown lands affected by this section contain 30 hectares or less, the minister may issue a grant, upon being satisfied that

             (a)  a person has acquired an interest in Crown lands under subsection (2); and

             (b)  the lands have been in continuous use for agricultural, business or residential purposes or for a purpose referred to in section 9 for a 20 year period immediately prior to January 1, 1977,

and the grant may be issued subject to those charges, exceptions or qualifications that the minister may decide.

 

      15. Section 37 of the Act is repealed and the following substituted:

Copies of grants, etc.

      37. (1) Duplicates of all grants, leases, licences or easements and copies of surveys shall be kept and recorded in the division.

             (2)  The records referred to in subsection (1) shall be open to the inspection of the public in a format acceptable to the minister, during normal business hours, upon the payment of a fee set by the minister.

             (3)  A person may obtain a copy of a grant, lease, licence or easement kept in the division upon the payment of a fee set by the minister.

 

      16. Section 40 of the Act is repealed and the following substituted:

Conflict of interest

      40. (1) Except with the consent of the Lieutenant-Governor in Council, the following persons shall not acquire, either alone or with another, a grant, lease, licence or easement under this Part:

             (a)  a deputy minister of the department;

             (b)  an assistant deputy minister of the department;

             (c)  an employee responsible for communications for the department;

             (d)  an employee of the Lands Branch of the department; and

             (e)  a spouse or cohabiting partner.

             (2)  In this section,

             (a)  "cohabiting partner" means a person who cohabits in a conjugal relationship outside of marriage with a person referred to in paragraph (1)(a), (b), (c) or (d); and

             (b)  "spouse" means a person who is married to a person referred to in paragraph (1)(a), (b), (c) or (d).

 

      17. Section 41 of the Act is repealed and the following substituted:

Lieutenant-Governor in Council regulations

      41. The Lieutenant-Governor in Council may make regulations

             (a)  respecting lands reserved under section 8 including the uses to which those lands may be put and the conditions under which those lands may be used; and

             (b)  generally for the giving of effect to the purpose of this Part.

Ministerial regulations

   41.1 The minister may make regulations

             (a)  setting out the structures for recreational purposes for which a grant, lease or licence may be issued under paragraph 7(2)(d);

             (b)  setting out the other information required under subsection 7(7); and

             (c)  generally for the giving of effect to the purpose of this Part.

 

      18. Subsection 45(3) of the Act is repealed and the following substituted:

             (3)  A notice under this section shall be published in the Gazette within the period fixed for filing claims and in any other location prescribed by the minister.

 

      19. Section 49 of the Act is repealed.

 

      20. The Act is amended by adding immediately after section 52 the following:

Regulations

   52.1 The minister may make regulations

             (a)  directing other locations for the publication of notices under subsection 45(3);

             (b)  setting the deposit required under section 50; and

             (c)  generally for the giving of effect to the purpose of this Part.

 

      21. Subsection 53(2) of the Act is repealed and the following substituted:

             (2)  Where the Crown lands that may be transferred under subsection (1) contain not more than 30 hectares, the minister may, by order, transfer those lands, either forever or for a lesser term, to the Crown in right of Canada, subject to those conditions, restrictions or limitations that the minister considers advisable and, for the purposes of this section, the order has the same effect as an order of the Lieutenant-Governor in Council. 

 

      22. Section 54 of the Act is repealed and the following substituted:

Transfer of land to other ministers

      54. The minister may by order transfer, either forever or for a lesser term, to another minister of the Crown specified in the order, the administration and control of the entire or a lesser interest of the Crown in an area of Crown lands, and the transfer may be made subject to those conditions, restrictions or limitations that the minister considers advisable.

 

      23. Subsection 64(11) of the Act is repealed.

 

      24. The Act is amended by adding immediately after section 73 the following:

PART VI.1
General

Collection of debt

   73.1 (1) Where there is a debt owed to the Crown under this Act, the minister may issue a certificate stating the amount due and remaining unpaid to the Crown and the name of the person by whom it is payable, and file the certificate with the court.

             (2)  When a certificate is filed with the court under subsection (1) it is of the same effect and all proceedings may be taken on the certificate as if it were a judgment of the court for the recovery of the amount stated in the certificate against the person named in the certificate.

             (3)  A person named in the certificate filed under this section may, within 30 days after the certificate is filed, apply to a judge for a review, on a question of law or jurisdiction, of the certificate.

             (4)  On application under subsection (3), the judge may make an amendment to the certificate that is necessary to make the certificate accord with the judge's decision.

             (5)  There is no appeal from a decision of a judge made under this section.

             (6)  A certificate filed under this section may also be filed in the judgement enforcement registry on the expiration of the 30 day period referred to in subsection (3) in accordance with Part III of the Judgment Enforcement Act and be enforced in accordance with that Act.

Statutory review

   73.2 The minister shall, every 5 years, conduct a review of this Act and the regulations and consider the areas which may be improved.

Transitional

      25. (1) Where an application was submitted for a grant involving an area of Crown lands that exceeds 20 hectares but does not exceed 30 hectares under section 4 of the Lands Act and the approval of the Lieutenant-Governor in Council was not provided before the coming into force of this Act, the minister may issue a grant without the approval of the Lieutenant-Governor in Council.

             (2)  Where a person has been issued a grant, lease or licence before the coming into force of this Act which provides that the strip of Crown lands around and adjoining a lake, pond, seashore or foreshore or along the bank of the river is less than 15 metres wide, that grant, lease or licence continues to be valid.

             (3)  Where a person published a notice of his or her intended application in the Gazette under section 7 of the Lands Act before the coming into force of this Act, that person is not required to publish a further notice in the Gazette when his or her application is received by the department.

             (4)  Where an application was submitted for a grant, lease or licence under section 7 of the Lands Act and it was not determined by the Lieutenant-Governor in Council before the coming into force of this Act, that application shall be determined by the minister as though it were submitted after the coming into force of this Act.

             (5)  Where an application was submitted for a grant for the site of a church or cemetery under section 9 of the Lands Act before the coming into force of this Act, that application shall be determined as though this Act were not in force.

             (6)  Where the time to register the plan of a survey was extended by the minister under subsection 10(3) of the Lands Act before the coming into force of this Act, that extension continues to be valid as though this Act were not in force.

             (7)  Where an error was discovered involving an area of Crown lands in excess of 20 hectares under section 18 of the Lands Act and the approval of the Lieutenant-Governor in Council was not provided before the coming into force of this Act, the minister may assign lands or grant a certificate without the approval of the Lieutenant-Governor in Council.

             (8)  Where an application was submitted to waive a condition involving an area of Crown lands that exceeds 20 hectares but does not exceed 30 hectares under section 20 of the Lands Act and that application was not determined by the Lieutenant-Governor in Council before the coming into force of this Act, that application shall be determined by the minister.

             (9)  Where a notice was issued under subsection 32(1) of the Lands Act before the coming into force of this Act, the time for complying with that notice shall continue to be 60 days from the date of the notice.

          (10)  Where an application was submitted for a grant involving an area of Crown lands that exceeds 20 hectares but does not exceed 30 hectares under section 36 of the Lands Act and that application was not determined by the Lieutenant-Governor in Council before the coming into force of this Act, that application shall be determined by the minister.

          (11)  Where an application was submitted to transfer the administration and control of the interest in Crown lands to the Crown in right of Canada involving an area of Crown lands that exceeds 20 hectares but does not exceed 30 hectares under section 53 of the Lands Act and the approval of the Lieutenant-Governor in Council was not provided before the coming into force of this Act, the minister may transfer the Crown lands without the approval of the Lieutenant-Governor in Council.

          (12)  Where an application was submitted to transfer the administration and control of the interest in Crown lands to another minister of the Crown involving an area of Crown lands that exceeds 20 hectares under section 54 of the Lands Act and the approval of the Lieutenant-Governor in Council was not provided before the coming into force of this Act, the minister may transfer the Crown lands without the approval of the Lieutenant-Governor in Council.

          (13)  Where an application was submitted by the spouse or cohabiting partner of a person employed with the department to acquire a grant, lease, licence or easement under the Lands Act and that application was not determined before the coming into force of this Act, that spouse or cohabiting partner may be issued the grant, lease, licence or easement without the consent of the Lieutenant-Governor in Council as though section 16 of this Act were not in force.