This is an official version.
Copyright © 2013: Queens Printer,
SNL2012 CHAPTER M-25
MUSKRAT FALLS PROJECT LAND USE AND
AN ACT RESPECTING THE USE AND EXPROPRIATION OF LAND FOR THE PURPOSE OF THE MUSKRAT FALLS PROJECT
(Assented to December 22, 2012)
This Act may be cited as the
2. In this Act
(a) "arbitration panel" means the arbitration panel appointed under section 24 ;
(b) "expropriation protocol" means the manner of conducting expropriations under this Act as prescribed by the regulations;
(c) "holder" means a proponent of the Muskrat Falls Project or any subsequent person who has an interest in both a transmission corridor and the transmission assets associated with it;
(d) "judge", unless the context otherwise requires, means a judge of the Trial Division;
"land" means real property of every kind, and includes tenements, hereditaments, appurtenances, leaseholds, and an estate, term, easement, statutory easement, right or interest in, to, over, under or affecting land, including rights-of-way, and waters, water rights, water powers and water privileges;
(f) "landowner" includes a person, the Crown or a department of the Crown, a Crown corporation or a Crown agent;
(g) "minister" means the minister or ministers appointed under the Executive Council Act to administer this Act or a Part or Parts of this Act;
(h) "municipality" means a municipality as defined in the Urban and Rural Planning Act, 2000 ;
(j) "proponent" means a proponent of the Muskrat Falls Project, and includes, whether individually or in combination of them,
(i) the corporation established in the Energy Corporation Act , including all affiliates, subsidiaries, successors and assigns of that corporation, and
(ii) Emera Inc., including all affiliates, subsidiaries, successors and assigns of that corporation;
(k) "secured creditor" means a person who has a security interest in the assets of another person or who acts for or on behalf of that person with respect to the security interest and includes a receiver or a receiver-manager appointed by a secured creditor or by a court on the application of the secured creditor, a trustee appointed under a trust deed relating to a security interest or another person performing a similar function;
(l) "security interest" means an overriding royalty, a deemed trust or actual trust, assignment or encumbrance not resulting in a complete transfer of title and beneficial ownership, and an interest in property that secures payment or performance of an obligation created by or arising out of a debenture, mortgage, lien, judgment, pledge, charge and a retention of title, however or wherever arising, considered to arise or otherwise provided for and whether absolute, contingent, fixed, floating, perfected or not perfected;
(m) "transmission assets" means transmission assets contained in, on or attaching to transmission lines for the Muskrat Falls Project including
(i) foundations, underground services, subsea services, erections and structures, whether temporary or permanent, and all other facilities, fixtures, appurtenances and tangible personal property of any nature whatsoever contained on or attaching to a transmission line, and
all mechanical, electrical, communication and other systems and other technology installed under or upon anything referred to in subparagraph (i);
(n) "transmission corridor" means the land over, under or upon a route upon which a transmission line is located, but does not include land occupied by transmission assets where those transmission assets are not located upon a transmission route;
(o) "transmission lines" means
(i) a new HVdc transmission line and all related components, including electrode sites, grounding stations and converter stations, constructed or to be constructed between the Muskrat Falls hydroelectric plant on the Churchill River and Soldier’s Pond,
(ii) new transmission lines and all related components including converter stations, constructed or to be constructed between the Muskrat Falls hydroelectric plant on the Churchill River and the generating plant located at Churchill Falls, and
(iii) new transmission lines and all related components including electrode sites, grounding stations and converter stations, constructed or to be constructed by Emera Inc. between the island portion of Newfoundland and Labrador up to and including Cape Breton, Nova Scotia; and
"trustee" means a trustee as defined in the Trustee Act.
Labrador Inuit rights
3. This Act and regulations made under this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act or regulations made under this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act or a regulation made under this Act.
This Act binds the Crown.
5. (1) Except as otherwise provided in this Act, for the purpose of the Muskrat Falls Project, this Act shall prevail over another Act of the province, and, in the case of an inconsistency between this Act and another Act of the province, this Act prevails.
(2) Section 56 of the Public Utilities Act shall not apply to the Muskrat Falls Project.
Statutory easement created
6. (1) The Crown, an agent of the Crown, a municipality or a person may create, in favour of a holder for a purpose described in subsection (3), an easement without dominant tenement to be known as a statutory easement.
(2) To the extent necessary to give effect to subsection (1), the rule requiring an easement to have dominant and servient tenements is abrogated.
(3) A statutory easement may only be created and may only be used by a holder for a purpose necessary in connection with an activity or undertaking involving the Muskrat Falls Project or a part of it.
(4) A statutory easement grants to the holder the right to construct, maintain, repair and operate, on the land subject to the statutory easement, transmission lines and transmission assets relating to the Muskrat Falls Project or a part of it, as well as a right of reasonable access over adjoining land to the land subject to the statutory easement as may be required for those purposes.
(5) Notwithstanding subsection (1), where land is subject to a security interest, a statutory easement shall not be created, except by expropriation, with respect to that land without the consent of the secured creditor.
(6) A landowner retains a residual interest in the land over which a statutory easement is created.
(7) Notwithstanding another provision of this Part, the creation of a statutory easement does not impede or detrimentally affect the right of the public or of a person, in accordance with the laws of the province and in a manner that does not interfere with the use and enjoyment of the statutory easement holder, to do some or all of the following:
(a) access lakes, ponds or rivers on land upon which a statutory easement has been created; and
(b) access for a recreational purpose, or for other personal use, land upon which a statutory easement has been created and to enter on to, exit or use the land for that purpose.
Notwithstanding the Provincial Parks Act
and the regulations under that Act, a statutory easement may be granted over land proclaimed to be part of the
Application of statutory easement
7. (1) A statutory easement is an interest in land and shall include any property or assets located upon, constructed, erected or affixed to the land of the statutory easement by or on behalf of a holder, and the ownership of that property or assets shall not vest with the landowner by virtue of being attached to the land but shall remain with the holder and shall only be transferred upon transfer by the holder of the statutory easement in accordance with this Part.
(2) A statutory easement created under this Part may be transferred, leased, have a security interest created or granted with respect to it or be otherwise dealt with by a holder and the rights to the land under a statutory easement may be assigned to another holder for a term and in a manner which leaves the assignor with a reversionary interest in those rights.
(3) A statutory easement shall only be granted to, leased or transferred to a holder.
(4) Subsection (3) does not restrict
(a) the ability of a secured creditor to deal with a statutory easement upon enforcement of a security interest, but where that security interest is realized, it may only be transferred to a holder; or
(b) the ability of a holder to transfer all or part of a statutory easement to the landowner, and upon that transfer that portion of the statutory easement transferred shall merge with the landowner's residual interest.
(5) Upon registration of an instrument creating a statutory easement, the statutory easement evidenced by it shall be collateral to the rights of the landowner in the land, and is enforceable against the successors in title of the landowner.
(6) Notwithstanding the date of creation of a statutory easement, all statutory easements registered under the authority of this Act shall expire on January 1, 2075, and the land which was the subject of the statutory easement shall then be held by the holder in the same manner as land is held for the purpose of transmission assets and transmission lines at that time.
Effect of registration
(1) A statutory easement and an instrument creating a security interest in that statutory easement may be registered under section 7 of the Registration of Deeds Act, 2009
(2) The minister shall prescribe the form of an instrument creating a statutory easement, and that instrument shall contain the following:
(a) those references to the provisions of this Act that the minister determines are necessary to ensure notice to third parties; and
(b) another provision respecting a statutory easement required by the Lieutenant-Governor in Council in the regulations.
(3) A landowner who executes an instrument respecting a statutory easement is not liable for a breach of a covenant in the instrument occurring after the person has ceased to be the owner of the land.
(4) Where a statutory easement is registered under this section, that registration constitutes a release of an existing security interest on the land described in the statutory easement, and no further release or modification of the security interest is necessary and the validity of the security interest on other land which is not the subject of the statutory easement is unaffected.
A landowner shall not subsequently encumber or create a security interest for any land with respect to which a statutory easement has been registered, and a security interest on the real property of the landowner shall not apply to or be binding upon the statutory easement or the holder of a statutory easement, notwithstanding the landowner's remaining interest in the land.
9. (1) Notwithstanding section 7 of the Lands Act, a shoreline reservation referred to in subsection 7(1) of that Act shall not apply to a statutory easement under this Part, and where lands referred to in that subsection are to be included with a statutory easement, the statutory easement over those lands does, in fact, pass to the holder.
(2) Notwithstanding subsection (1), a holder shall make every reasonable effort to ensure that the construction, maintenance, repair, and operation of the Muskrat Falls Project upon a statutory easement does not impede public access to and along the land which would, but for subsection (1), be a shoreline reservation referred to in subsection 7(1) of the Lands Act .
(3) Where a holder does not comply with the requirements of subsection (2), the holder shall provide alternate public access to and along lands which would, but for subsection (1), be a shoreline reservation referred to in subsection 7(1) of the Lands Act to the satisfaction of the minister within 30 days from the date the impediment occurs, unless the minister is satisfied that the access cannot reasonably be provided, in which case the holder is not required to comply with subsection (2).
Application of s.10, Lands Act
10. Section 10 of the Lands Act, except subsection 10(2), applies to lands which are the subject of a statutory easement under this Part.
11. The Lieutenant-Governor in Council may make regulations respecting
the provisions required to be contained in an instrument creating a statutory easement;
(b) the manner in which a statutory easement may be assigned; and
(c) generally, to give effect to this Part.
12. (1) Where a proponent requires land which, in the opinion of the proponent, is necessary for the Muskrat Falls Project, the proponent may negotiate with the landowner for that land, and where
(a) an agreement is reached, it is valid and binding on the parties; or
(b) an agreement cannot be reached, the proponent may apply to the expropriating authority in accordance with the expropriation protocol to expropriate the land.
(2) An application under paragraph (1)(b) shall contain the information required in the regulations.
(3) The expropriating authority shall review the proponent's application for expropriation and, where it meets the requirements of this Part and the expropriation protocol, acquire the land on behalf of the proponent by expropriation under this Part.
(4) The Lieutenant-Governor in Council shall designate a minister of the Crown as the expropriating authority for the purpose of this Part.
(5) An expropriation may be made under subsection (3) where
(a) an agreement cannot first be reached on the amount to be paid for the land or on other terms of the purchase of the land;
(b) the landowner, after reasonable inquiry, is not known or cannot be found by the proponent;
(c) the landowner is incapable of conveying the land or his or her interest in it; or
(d) for another reason that the expropriating authority considers it advisable to expropriate the land.
(6) Land which is acquired under this Part, whether by negotiation or expropriation, shall not be further acquired or expropriated under the authority of another Act of the province except
(a) by the Crown; or
(b) otherwise, in accordance with this Act.
(7) The Public Utilities Acquisition of Lands Act does not apply to an expropriation under this Part.
(8) TheExpropriation Act does not apply to an expropriation under this Part.
(9) Notwithstanding another provision of this Part, where a family home is to be expropriated for the purpose of the Muskrat Falls Project, the Family Homes Expropriation Act shall apply to that expropriation and compensation shall be determined in accordance with that Act.
Where expropriation urgent
13. (1) Where the Lieutenant-Governor in Council is satisfied on an application by a proponent that the proponent urgently requires the land for the purpose of the Muskrat Falls Project, the Lieutenant-Governor in Council may by order direct the expropriating authority to proceed with an intended expropriation without inquiry.
The Lieutenant-Governor in Council shall, in the expropriation protocol, prescribe the information required to be provided to a landowner in respect of an urgent expropriation under this section.
(3) Notwithstanding section 21 , within 7 days after the information referred to in subsection (2), including the notice of expropriation, is served or provided, the title to the land vests in the proponent named in the notice of expropriation.
The Churchill Falls (
(1) For the purpose of this section, "Act" means The Churchill Falls (
Notwithstanding the Act, the expropriating authority may, on behalf of a proponent for the purpose of transmission lines and transmission assets constructed or to be constructed between the Muskrat Falls hydroelectric plant on the Churchill River and the generating plant located at Churchill Falls, expropriate in the manner prescribed in this Part, land leased to the Churchill Falls (Labrador) Corporation Limited under the Act and the Power Site Lease dated August 1, 1968.
Notwithstanding the Act and the lease referred to in subsection (2), the arbitration provisions contained in that Act and the lease do not apply to an expropriation by the expropriating authority referred to in subsection (2), and the provisions of this Part apply to that expropriation.
A person, including the Churchill Falls (
An action or proceeding does not lie or shall not be instituted or continued against the Crown, a proponent or a minister, employee or agent of the Crown based on a cause of action arising from, resulting from or incidental to the operation of this section other than an action or legal remedy available to a landowner provided in this Part.
Ascertainment of land to be expropriated
15. (1) The proponent may by a person authorized by him or her for the purpose ascertain and delimit the land to be expropriated, and for that purpose the person so authorized may enter upon land and do the work necessary in the opinion of that person to ascertain and measure and obtain or prepare a plan and description of the land to be expropriated.
(2) The proponent shall compensate the landowner detrimentally affected by an act done under this section and in default of agreement between the landowner and the proponent, the landowner shall be entitled to compensation for reasonable incidental damages as set out in this Part and the expropriation protocol.
Notice of expropriation
16. (1) The expropriating authority intending to expropriate land shall notify the landowner in the manner prescribed in the expropriation protocol, and the notice shall contain the information prescribed in that protocol.
Where the landowner is incapable of conveying the land or cannot be found in the province or is not known to the proponent or where for another reason personal service cannot be conveniently effected, the proponent shall post a written notice in a conspicuous place on the land to be expropriated.
(3) Where a notice of expropriation has been served on the landowner or posted on the land that is being expropriated, the notice may require the owner to file a claim for compensation with the expropriating authority within the time period and in the manner prescribed in the expropriation protocol, and the expropriating authority may extend that time period as prescribed in that protocol.
(4) Where the landowner of land being expropriated is required to file a claim for compensation under subsection (3) and does not do so within the time fixed or within the further period that is fixed, the arbitration panel may fix and the proponent shall pay the amount of compensation to be paid in accordance with the rules for compensation in this Part and in the expropriation protocol, and the award of the arbitration panel is final.
Limited estate required
17. Where land expropriated under this Part is required for a limited time only or where only a limited estate or right is required, the notice of expropriation shall indicate that and the compensation payable in respect of that land shall be fixed accordingly.
Rights of mortgagee or lien holder
18. (1) Where the land to be expropriated is subject to a security interest and the secured creditor is known to the expropriating authority, a copy of the notice of expropriation shall be served on the secured creditor.
(2) Where the claim of a secured creditor has been proved to the satisfaction of the proponent, the amount secured by the security interest in respect of land expropriated shall be deducted from the compensation payable and be paid by the proponent to the secured creditor and the receipt of the secured creditor is a valid discharge of the proponent for the amount of the compensation paid in satisfaction of the security interest in respect of the land expropriated.
An action does not lie against the expropriating authority or the proponent for loss or damages suffered by the secured creditor because of the failure of the proponent to comply with this section.
(4) A security interest on land subject to expropriation is terminated by the expropriation, notwithstanding that the landowner may have a residual real property interest in the land which is subject to the expropriation.
Effect of error
19. (1) An error in a notice of expropriation does not invalidate the expropriation of the land.
(2) A notice of expropriation may be amended and an amendment shall be served or posted and registered in accordance with this Part as if it were a notice of expropriation and shall be considered to have been served or posted at the same time as the notice of expropriation amended by it.
20. (1) Where a proponent and the person who in the opinion of the proponent is the apparent landowner have reached an agreement for the transfer of the land to the proponent but the proponent is of the opinion that title to the land cannot be conveniently or readily transferred by the apparent owner
(a) subsections 16 (1) and (2) shall apply as if the owner is not known, but in addition the proponent shall serve a copy of the notice of expropriation on the apparent owner; and
(b) subsections 16 (3) and (4) shall not apply, and the compensation payable to the apparent owner under this Part upon the expropriation becoming effective shall be the compensation contained in the agreement,
but where it is found that the apparent owner is not the true owner of the land, compensation shall be assessed and paid to or in respect of the true owner in accordance with this Part.
(2) Paragraph (1)(b) shall not apply unless the expropriating authority is satisfied that the agreement is consistent with the requirements of this Act and the expropriation protocol.
Vesting of title
21. (1) Within 10 days after the notice of expropriation is served, posted or published as required, the title to the land vests in the proponent named in the notice of expropriation.
Where a person resists or opposes a proponent or the expropriating authority entering upon land referred to in section 15
or entering upon and taking possession of expropriated land after the title to the land has vested under this Part, a judge may make an order respecting access to the property for the proponent or the expropriating authority, as required for the expropriation, and any other order the court considers necessary or required to facilitate access.
22. (1) The proponent shall pay compensation to the owner of land expropriated under the authority of this Part and to a landowner detrimentally affected by the expropriation.
(2) Where the parties
(a) agree as to the compensation to be paid, that agreement shall be approved by the expropriating authority where it is consistent with this Act and the expropriation protocol, and compensation shall be paid accordingly; or
(b) cannot agree as to the compensation to be paid, the matter may be referred to the arbitration panel under this Part by either the proponent or the landowner.
Compensation referred to in subsections (1) and (2) shall be determined in the manner and in accordance with the rules for compensation prescribed in this Part and the expropriation protocol, which shall include the following:
(a) the compensation shall be an amount based on the fair market value in accordance with the highest and best use of the land at the time of the beginning of expropriation proceedings and no account shall be taken of the compulsory acquisition of the land, the disturbance of the owner or occupier, or other detrimental effect, subject to paragraph (f) and subsection (4);
(b) the fair market value of the land shall be taken to be the amount that the land, if sold in the open market by a willing seller to a willing buyer, might be expected to realize but all returns and assessments of capital value for taxation made or acquiesced in by the owner of the land shall be considered;
where there is more than one separate interest in land, including a security interest, the market value of each separate interest shall, where practical, be established separately;
where the expropriation is of a part of land that is subject to a security interest, the compensation of a secured creditor shall be determined in accordance with the market value of the expropriated part of the land that is subject to the security interest;
where only part of an owner’s land is expropriated and as a result of the expropriation the value of the remaining land is increased, the owner is nevertheless entitled to the market value of the land expropriated;
(f) where only part of an owner’s land is taken, compensation shall be given for
(i) detrimental affection and any reduction in market value to the remaining land, and
(ii) incidental damages
if the detrimental affection and incidental damages result from or are likely to result from the taking or from the construction or use for which the land is required;
(g) when the expropriation is of a statutory easement, the amount of compensation may ignore the residual value to the owner; and
(h) when the expropriation is of a statutory easement, the amount of compensation shall include
(i) damage caused by or arising out of the operation of the proponent to land of the owner or occupant other than the area expropriated,
(ii) the loss or damage to personal property of the owner or occupant caused by or arising out of the operation of the proponent, and
(iii) expense incurred by the owner or occupant in repairing or recovering the owner’s or occupant’s personal property due to an act or omission of the proponent.
(4) In addition to the manner of determining compensation referred to in subsections (1) to (3), a landowner may, in accordance with the expropriation protocol, be compensated for the disturbance to the landowner or for another detrimental effect, or for business losses as a result of the expropriation.
23. (1) A copy of a notice of an expropriation in the form required by the expropriation protocol shall be registered in accordance with section 7 of the Registration of Deeds Act, 2009 , and that Act shall apply to the registration of that instrument.
(2) The provisions of the Registration of Deeds Act, 2009 relating to proof for registration of an instrument shall apply to proof of service or of posting of the notice as if the person serving or posting the notice were the signing witness to the execution of the instrument.
Registration of a notice of expropriation and other documents respecting expropriation as required in the expropriation protocol constitutes compliance with the provisions of the Registration of Deeds Act, 2009.
(4) Where the name of the owner of the land expropriated is not known, the notice of expropriation shall be registered with reference only to the proponent.
24. The Lieutenant-Governor in Council shall, in the manner prescribed in the expropriation protocol, appoint an arbitration panel to determine compensation for or related to an expropriation under this Part.
Arbitration panel may try questions of law and fact
25. (1) The arbitration panel may, in addition to assessing the value of land expropriated, determine all questions of law and fact necessary for it to
(a) fix the amount of compensation to be paid in respect of the land that was expropriated or detrimentally affected by the expropriation; and
(b) determine the persons to whom compensation should be paid and the amount which should be paid to each of them.
(2) The arbitration panel may state an award for compensation as to the whole or part of the compensation in the form of a special case for the opinion of a judge of the Trial Division.
(3) The arbitration panel may at any stage of its proceedings and shall where directed by a judge of the court state in the form of a special case for the opinion of the court a question of law arising in the course of the proceedings.
(4) A party may apply to a judge of the court for an order directing that a question of law arising in the course of proceedings before the arbitration panel shall be stated in the form of a special case.
26. (1) Where land subject to a lease or sublease for a term of not less than one year is expropriated the arbitration panel shall apportion the compensation fixed in respect of the land between the lessor and lessee and sublessee or the assigns of either in a manner that in its absolute discretion seems appropriate.
(2) Where part only of the land referred to in subsection (1) is expropriated the arbitration panel shall, in addition, apportion the rent payable in respect of the land between the land expropriated and the residue of the land and after the apportionment the lessee or sublessee or their assigns shall, as to all future accruing rent, be liable only for so much of the rent as is apportioned in respect of the land not expropriated.
(3) In respect of the land not expropriated and as against the lessee and sublessee or their assigns the lessor has all the same rights and remedies for the recovery of the portion of rent as previously to the apportionment he or she had for the recovery of the whole rent reserved by the lease, and all the covenants, conditions and agreements of the lease, except as to the amount of rent to be paid, shall remain in force with regard to that part of the land that is not expropriated in the same manner as they would have done where that part only of the land had been included in the lease or sublease.
Return of land expropriated
27. (1) Where, before the compensation has been actually paid or before an award is made by the arbitration panel, a parcel or a part of a parcel of land taken for the purpose of this Act is found by a proponent to be unnecessary for the purpose for which it was expropriated or where it is found by a proponent that only a more limited estate or interest in the land or a part of it is required, the expropriation authority may, in response to a request from a proponent where that proponent meets the requirements of the expropriation protocol, by a written notice served or posted in the manner provided in section 16 , declare that the land or the part of it referred to in the notice is not required and is abandoned by the person in whom the title vested under section 13 or 21 or that it is intended to retain only a limited estate or interest in the land or a part of it as is mentioned in the notice.
(2) Upon the written notice referred to in subsection (1) being registered in the same manner as is provided in section 23 for the registration of a notice of expropriation, the land declared to be abandoned shall revest in the person from whom it was taken or in those entitled to claim under him or her and section 23 applies to the notice as if it were a notice of expropriation.
(3) In the event of a limited estate or interest in the land or a part of it being retained by the person in whom the title vested under this Part, the land shall revest in accordance with subsection (2), subject to the estate or interest retained.
(4) The event of the abandonment revesting the land in the person from whom it was expropriated shall be taken into account in addition to all the other circumstances of the case in estimating or assessing the amount to be paid to a person claiming compensation for the land expropriated and not abandoned.
Award of arbitration panel to be written
28. (1) The arbitration panel shall make its award in writing within 60 days after it has been seized with the matter, unless the expropriation authority extends that period, and shall immediately deliver a copy of its award to all parties to the hearing.
(2) A party to an arbitration may, within 30 days after the date of an award, give to the other party notice of an appeal to the Court of Appeal against the findings of the arbitration panel upon a question of law or fact in connection with the expropriation or upon the question of the amount of compensation awarded by the arbitration panel.
(3) Costs in an appeal under subsection (2) may be awarded by the court for or against the proponent.
Want of form
29. (1) An award is not invalid because of a want of form or other technical objection where this Act has been substantially complied with, and the award states clearly the compensation awarded and the lands in respect of which it has been awarded.
(2) The arbitration panel may, but need not, name in the award the person to whom compensation is to be paid but the lands in respect of which the award has been made shall be clearly indicated.
Arbitration panel may award costs
30. (1) Where the compensation awarded by the arbitration panel in a case is greater than the sum that the proponent offered in writing for the land that was expropriated or detrimentally affected, the proponent shall pay the landowner's reasonable costs and expenses in connection with the hearing held by the arbitration panel.
(2) Where the compensation awarded by the arbitration panel in a case is less than the sum that the proponent offered in writing for the land that was expropriated or detrimentally affected, the proponent has no obligation to pay the costs and expenses of the landowner.
(3) Where in respect of land expropriated or detrimentally affected no sum was offered before expropriation, costs and all expenses in connection with the hearing held by the arbitration panel shall be paid by the party designated by the arbitration panel, and may be apportioned between the parties.
Payment of compensation
31. (1) The proponent shall pay the compensation awarded by the arbitration panel within 30 days after the date on which the award was made, and, where the compensation is not paid within 30 days after the date on which the award was made, it shall after the end of that time period bear interest at the rate of 5% a year until it is paid.
(2) Where compensation has been agreed between the parties but has not been paid within 30 days after the date on which the agreement was made, it shall after the end of that time period bear interest at the rate of 5% a year until it is paid.
Claims upon compensation
32. The compensation agreed upon or awarded in respect of land expropriated or detrimentally affected by the exercise of powers conferred by this Act shall stand in the stead of the land expropriated or detrimentally affected and a claim to or encumbrance upon the land expropriated or detrimentally affected shall, as against the proponent, become a claim to or upon the compensation and shall no longer affect the land expropriated or detrimentally affected.
Payments into trust
33. (1) Where, in respect of land that has been expropriated or detrimentally affected,
(a) the owner
(i) refuses to accept the compensation awarded in respect of the land,
(ii) neglects or fails to make out a title to the land or the interest in land claimed by him or her to the reasonable satisfaction of the expropriation authority,
(iii) refuses to execute a document or receipt of indemnity in respect of the land as required by the expropriation authority,
(iv) is absent from the province or cannot after inquiry by the proponent be found, or
(v) is under a disability;
(b) a person other than the owner to whom compensation is payable under this Act
(i) refuses to accept the compensation awarded to him or her,
(ii) is under a disability,
(iii) is a partial or qualified owner, or
(iv) is not entitled to sell or convey the land; or
(c) the expropriation authority certifies that in its opinion there are or are likely to be conflicting claims in respect of the compensation or that for whatever reason it is advisable to pay the compensation into trust,
the proponent shall place those funds in trust with a trustee in accordance with the expropriation protocol.
(2) From the date of the payment into trust, the proponent is not liable to pay interest under this Act or otherwise.
Proponent to notify claimants
34. (1) When money is paid into trust, the proponent shall
(a) notify those persons referred to in section 33 to whom notice can be given;
(b) file with the trustee the name and address of persons who to the knowledge of the proponent claim the compensation or a part of it, together with all information in the possession of the proponent in respect of the expropriation and claims for payment of compensation on account of the expropriation or detrimental effect resulting from it; and
(c) within 10 days after payment into trust, publish a notice in a newspaper published in the province and circulating in the area where the land is located stating the place where the land is located, describing the land that has been expropriated under this Act and calling upon all persons who had an interest in or claim against the land or who have been detrimentally affected by the expropriation to file their claims to the compensation or part of it with the trustee.
(2) The proponent shall advise the expropriating authority of an action under subsection (1).
Trustee to furnish names and addresses
35. The trustee shall give to a person requesting it the name and address of every claimant to compensation filed with him or her by the proponent or by or on behalf of the claimants.
Trustee to pay owner
36. (1) Where compensation is paid into a trust account under this Act the trustee shall, upon a person establishing his or her claim to it or a portion of it according to law and fulfilling all of the terms or conditions applying to him or her under this Act, pay to that person the compensation or the portion of the compensation but the trustee shall not pay the compensation in a case where it appears to him or her that the claim of a person is or is likely to be contested or has not been established in accordance with this subsection.
(2) Where the trustee refuses to pay compensation under subsection (1) he or she shall give to a person claiming payment a certificate of refusal to pay the compensation and stating his or her reasons for the refusal.
Where claim is contested
37. Where there are conflicting claims to compensation or a portion of the compensation paid into trust under this Act or where for another reason the trustee has refused to make payment under section 36 , a person claiming the compensation or a part of the compensation may apply to the Trial Division for an order directing that the compensation or part of the compensation be paid to him or her.
Petition for payment out of court
38. (1) An application to the Trial Division under section 37 shall be made by application of the claimant stating that to the best of his or her belief he or she was immediately before the expropriation the owner of the land in respect of which he or she claims and setting out in detail the facts on which his or her belief is founded.
(2) Where he or she is not aware of the existence of a claim adverse to or inconsistent with his or her own he or she shall state that.
(3) Where he or she is aware of an adverse claim he or she shall set out every adverse claim and shall state that he or she is not aware of an adverse claim except what he or she sets out.
(4) The application shall be verified by affidavit, but with leave of the judge the affidavit of the applicant may be dispensed with or may be made by some person other than the applicant and the affidavit may be made in part by one person and in part by another person.
Notice of application
39. (1) Before proceedings are taken under section 38 a claimant shall post notice of his or her intention to make an application under that section in the Registry of the Supreme Court for 3 clear days, and he or she shall then give notice of his or her application in accordance with the Judicature Act and the Rules of the Supreme Court, 1986 to a claimant whose name has been filed with the trustee and to a person who to his or her knowledge claims the compensation or a part of the compensation.
(2) Where it appears to the judge that there is a person who may have a claim adverse to or inconsistent with that of the applicant, the applicant shall serve notice on that person by personal or substituted service as the judge considers necessary or desirable.
(3) At any stage of the proceedings the judge may require further publication to be made or further notice to be served upon a person that he or she considers necessary.
40. A person having an adverse claim or a claim not recognized in the application may before the hearing of the subject matter of the application file with the court a statement of the particulars of his or her claim verified by affidavit and serve a copy of the statement on the petitioner, his or her solicitor or agent, and the trustee.
Security for costs
41. The judge may at any stage of the proceedings order security for costs to be given by the applicant or by a person making an adverse claim.
42. The judge may order costs either between party and party or between solicitor and client to be paid by or to a party to a proceeding.
43. The matter of the application may be heard and adjudicated upon and the judge may then make an order for the distribution, payment or investment of the compensation and for securing the rights of all parties interested as the judge considers appropriate.
44. The trustee shall in cases referred to in section 43 dispose of the compensation as directed by the judge.
Claims barred after 3 years
45. A claim to compensation or a part of compensation paid into a trust account under this Act that has not, before the end of 3 years from the date of payment, been established to the satisfaction of the trustee or in respect of which an application under section 37 has not been commenced in the Trial Division in accordance with this Act, is barred.
Compensation becomes property of proponent
46. Where a claim to compensation is barred under section 45 , the compensation and all interest accrued become the property of the proponent and the trustee shall then return the compensation and interest to the proponent.
47. The Lieutenant-Governor in Council shall, by regulation, establish an expropriation protocol for the purpose of expropriations under this Part, and in particular shall make regulations
(a) respecting the procedures which may be required for negotiations respecting land sought under this Part;
(b) respecting the procedures for expropriations under this Part, including urgent expropriations under section 13 and the return of land under section 27 ;
(c) prescribing the information which is required to be provided respecting an agreement, expropriation or arbitration under this Part;
(d) prescribing the time periods for response to a notice of expropriation required under this Part, and those other time periods respecting expropriations under this Part;
(e) respecting the composition of a panel of arbitration, the process by which that arbitration panel will hear and decide matters, and generally to facilitate the conduct of an arbitration between the parties;
(f) respecting the keeping by the expropriating authority of a register of expropriations, including the particulars required to be contained in that register;
(g) respecting the rules for the payment of money into trust under this Part; and
(h) generally, for the purpose and administration of this Part.
48. For the purpose of this Part, "real property" means real property as defined in the Municipalities Act, 1999 .
Real property tax
49. (1) Where a real property tax is imposed by an Act of the province for the benefit of a municipality and a holder is liable to pay that tax, the holder shall pay the tax in accordance with that Act.
(2) Notwithstanding subsection (1), a holder is exempt from municipal taxation with respect to the following real property in relation to the Muskrat Falls Project only:
(a) real property of the holder in the transmission corridor;
(b) transmission assets on, under or connected to real property in the transmission corridor; and
(c) other transmission assets as may be prescribed in the regulations,
but the holder's liability to pay tax referred to in subsection (1) is otherwise unaffected.
(3) The Lieutenant-Governor in Council may make regulations respecting the transmission assets referred to in paragraph (2)(c).
Business or commercial tax
50. (1) Where a business or commercial tax is imposed by an Act of the province for the benefit of a municipality and a holder is liable to pay that tax, a holder shall pay the tax in accordance with that Act.
(2) Notwithstanding subsection (1), a holder is exempt from taxation referred to in that subsection with respect to the transmission corridor or the transmission lines where the exclusive operation of the holder in the transmission corridor or in respect of the transmission line is the transmission of electrical energy with respect to the Muskrat Falls Project, but the holder's liability to pay tax referred to in subsection (1) is otherwise unaffected.
51. (1) Where water or sewage or water and sewage tax is imposed by an Act of the province for the benefit of a municipality and a holder is liable to pay that tax, the holder shall pay that tax in accordance with that Act.
(2) Nothing in this Act affects the ability to impose a tax under an Act of the province or the liability to pay that tax where a service referred to in subsection (1) is provided to a holder.
Taxation of landowner
52. Notwithstanding another Act of the province, where a statutory easement has been registered under this Act, a landowner is not liable to pay tax to a municipality as a result of a residual interest in the land which is the subject of a statutory easement.
Order to pay taxes
53. (1) The Lieutenant-Governor in Council may by order direct that subsection 49 (2) or 50 (2) no longer applies to a holder.
(2) An order made under subsection (1) has effect from the date of the order or from the date that may be stated in the order.
Land use and permitting
54. (1) A holder may use and develop land located within the boundary of a municipality or a planning area as defined in the Urban and Rural Planning Act, 2000 in respect of the transmission corridor and transmission lines for the purpose of the Muskrat Falls Project without obtaining a permit from a council of a municipality as may otherwise be required under an Act of the province.
(2) A land use plan or development regulations under the Urban and Rural Planning Act, 2000 , the City of St. John's Act , the City of Corner Brook Act , the City of Mount Pearl Act or the Municipalities Act, 1999 , shall not be inconsistent with the approved use under subsection (1), and where land use plans or development regulations were prepared and approved before the coming into force of this section, they are considered to be modified and are approved as being consistent with the approved use under subsection (1).
(3) After the coming into force of this Part, a land use plan or development regulations under the Urban and Rural Planning Act, 2000 , the City of St. John's Act , the City of Corner Brook Act , the City of Mount Pearl Act or the Municipalities Act, 1999 , shall only be approved where consistent with subsection (1).
(4) A person is not entitled to compensation for a reduction in the value of that person’s interest in land or loss or damage to that person’s interest in land resulting from the application of this section, except as may otherwise be referred to in this Act.
55. (1) The following Acts shall not apply for the purpose of permitting in a transmission corridor:
(a) theMunicipalities Act, 1999 ;
(b) the Urban and Rural Planning Act, 2000 ; and
(c) the City of St. John's Act , the City of Corner Brook Act and the City of Mount Pearl Act .
(2) A municipality or a person shall not use or undertake a development in respect of a transmission corridor, except in accordance with a permit issued under subsection (4), or, where the person is a holder, as approved under subsection 54 (1).
(3) A municipality or a person may, in accordance with the regulations, apply to the minister for a permit for the development or use of land in a transmission corridor where that development or use is necessary
(a) for public infrastructure;
(b) for the purpose of access to land not in the transmission corridor; or
(c) for the use of land in a transmission corridor by an adjacent landowner for a purpose prescribed in the regulations.
(4) Where, following consultation with the holder of the transmission corridor, the minister is of the opinion that the proposed use or development does not unnecessarily interfere with the use of the transmission corridor by the holder and the application is otherwise acceptable to the minister, the minister may issue a permit.
(5) A permit issued under this section may contain those terms, conditions and specifications as prescribed by the minister.
(6) A decision of the minister on an application under this section is final and binding.
Continued non-conforming use
56. The minister may, following consultation with a holder of the transmission corridor and in accordance with regulations made under this Part, allow a development or use of land to continue under a permit issued by a council of a municipality in a manner that does not conform with section 54 provided that the non-conforming use legally existed before the approval of the use under that section and does not unnecessarily interfere with the use of the transmission corridor by the holder.
57. (1) Where a person has, contrary to subsection 55 (2) or an approval under that subsection, undertaken or commenced a building or other development, the minister, where he or she considers it necessary, may order that the person pull down, remove, stop construction, fill in or destroy that building or development and may order that the person restore the site or area to its original state.
(2) A person ordered to carry out an action under subsection (1) shall be served with that order and shall comply with the order at the person's own expense.
(3) An order made under this section continues in force until revoked by the minister who made the order.
(4) The minister may, in an order made under this section, specify a time within which there shall be compliance with the order.
(5) Where a person to whom an order is directed under this section does not comply with the order or a part of it, the minister may take the action that he or she considers necessary to carry out the order and costs, expenses or charges incurred by the minister in carrying out the order are recoverable against the person against whom the order was made as a debt owed to the Crown.
58. The Lieutenant-Governor in Council may make regulations for the purpose of this Part, including regulations respecting
(a) the manner in which an application for a permit under this Part may be made;
(b) the purpose for which land in a transmission corridor may be used in accordance with paragraph 55 (3)(c); and
(c) generally, to give effect to this Part.
Fees and forms
59. The minister may set fees and prescribe forms for the purpose and administration of this Act.
SNL2009 cR-10.01 Amdt.
60. Subsection 7(1) of the Registration of Deeds Act, 2009 is amended by adding immediately after paragraph (a) the following:
a statutory easement under the
61. This Act, or a section or subsection, paragraph, subparagraph or clause of it comes into force on a day or days to be proclaimed by the Lieutenant-Governor in Council. (In force - May 31/13)