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Acts and Regulations

2009-107 - Crown Lands and Forests Act

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NEW BRUNSWICK

REGULATION 2009-107

under the

Crown Lands and Forests Act

(O.C. 2009-411)

Filed September 30, 2009

1Section 2 of New Brunswick Regulation 86-160 under the Crown Lands and Forests Act is amended by adding the following definitions in alphabetical order:

“appeal board” means the Forest Audit Appeal Board established under section 31.4 of the Act;(Commission d’appel)

“compliance action plan” means a compliance action plan referred to in section 31.2 of the Act; (plan des mesures de conformité)

“forest audit report” means a forest audit report referred to in section 31.2 of the Act; (rapport de la vérification forestière)

2The Regulation is amended by adding after section 2 the following:

FOREST OPERATIONS COMPLIANCE AUDITS

2.1(1)A forest audit report shall assess the compliance of a licensee and assign one of the following categories to each instance of non-compliance:

(a) not significant;

(b) minor significant; and

2.1(2)The assignment of an instance of non-compliance to one of the categories referred to in subsection (1) shall be based on, but not limited to, the following factors:

(a) whether the non-compliance is found frequently or infrequently in the forest operations compliance audit or was found frequently or infrequently in previous forest operations compliance audits; and

(b) whether the impact of the non-compliance on the environment or on forest resources is severe or not severe.

2.1(3)If an instance of non-compliance is categorized as not significant in a forest audit report, the forest audit report shall not require the licensee to submit a compliance action plan or impose a penalty.

2.1(4)If an instance of non-compliance is categorized as minor significant in a forest audit report, the forest audit report shall require the licensee to submit a compliance action plan and a penalty shall be imposed in a range set out in Schedule B for the category of non-compliance.

2.1(5)If an instance of non-compliance is categorized as major significant in a forest audit report, the forest audit report shall require the licensee to submit a compliance action plan and a penalty shall be imposed in a range set out in Schedule B for the category of non-compliance.

2.1(6)A compliance action plan required to be submitted by a licensee in response to a forest audit report shall, if applicable,

(a) identify the severity and scope of the instance of non-compliance,

(b) identify any corrective action or other measures to remedy the instance of non-compliance,

(d) identify any preventative action by which the licensee may avoid further instances of non-compliance, and

(e) specify a timeline during which any preventative action will be completed.

2.2After the Minister establishes the range of the penalty under section 2.1, the amount of a penalty imposed by a forest audit report shall reflect

(a) whether there was any attempt to mitigate the instance of non-compliance,

(b) whether the licensee used best management practises,

(d) whether the licensee has a history of other instances of non-compliance,

(e) the degree of wilfulness or negligence involved in the instance of non-compliance, and

(f) any other factor the Minister considers relevant.

2.3(1)Any person directly affected by the findings of a forest audit report may appeal the findings of the report by serving a notice of appeal on the chair of the appeal board by registered mail or personal service within 15 days after receiving the report.

2.3(2)The appeal board may refuse to accept a notice of appeal if, in the appeal board’s opinion, the appeal is frivolous, vexatious or an abuse of process or it finds that the only ground for appeal established is a defect in form or technical irregularity.

2.3(3)A notice of appeal referred to in subsection (1) shall

(a) include the name and address of the person making the appeal,

(b) contain a statement of the matter being appealed, including the grounds for the appeal, and

2.4(1)The chair of the appeal board shall, as soon as possible, serve on the person making the appeal, the Minister and any other person who, in the opinion of the chair, may be affected by the appeal written notice of the time, date and place the appeal is to be heard.

2.4(2)The appeal board shall hear the appeal at the time, date and place referred to in the notice under subsection (1) but it may, at the request of any party to the appeal, adjourn the appeal for such period of time as it considers appropriate.

2.5(1)The chair, vice-chair and members of the appeal board are entitled to be reimbursed for traveling and other expenses incurred by them in the performance of their duties in accordance with the Travel Directive of the Board of Management.

2.5(2)The chair and the vice-chair of the appeal board shall serve without salary but, when engaged in making a decision, conducting a hearing or dealing with a matter under appeal, shall be paid a daily allowance of $500 for each day or $250 for each half-day, or part of the day.

2.6(1)If an appeal is to be conducted, a panel of the appeal board shall be convened by the chair to conduct the appeal on behalf of the appeal board and shall consist of

(a) the chair of the appeal board or, at the discretion of the chair, the vice-chair of the appeal board,

(b) a member appointed under paragraph 31.4(2)(c) of the Act, and

2.6(2)If no chair has been appointed or the chair is unable for any reason to convene a panel of the appeal board or is unable for any reason to exercise his or her discretion under paragraph (1)(a), the vice-chair shall act in place of the chair.

2.6(3)A panel of the appeal board may act as and has the powers and duties of the appeal board.

2.7The appeal board in carrying out its duties under the Act and this Regulation shall

(a) have all the powers, privileges and immunities of a commissioner under the Inquiries Act and the procedural safeguards contained in the regulations under that Act, when applicable to and not inconsistent with the provisions of this Regulation,

(b) allow the appellant and the Minister or their authorized representatives to appear before the appeal board and present such information and testimony as they see fit, if it is relevant to the matter under consideration, and

(c) allow the appellant or the person’s authorized representative to be present at all times during the testimony of the Minister or the Minister’s authorized representatives.

2.8(1)All hearings of the appeal board shall be closed to the public.

2.8(2)No member of the appeal board shall discuss the appeal with any party to the appeal before the hearing of the appeal.

2.8(3)The appeal board may receive information on oath, affidavit or otherwise, which in its discretion, it considers fit and proper, whether or not admissible as evidence in a court of law.

2.8(4)No proceeding of the appeal board shall be invalid by reason only of a defect in form or a technical irregularity.

2.8(5)An appeal shall be decided upon its own merits and in accordance with the Act and this Regulation.

2.8(6)The Minister shall provide the clerical and other assistance that is required for the conduct of the appeal board.

2.9(1)The decision of the appeal board shall be in writing and shall include

(a) the reasons for the decision,

(b) the date on which the decision was made,

(d) any other remarks the appeal board considers relevant.

2.9(2)The decision of the appeal board shall be signed by the chair.

2.9(3)The decision of the majority of the members of the appeal board who hear an appeal shall be the decision of the appeal board and shall be final and conclusive and is not subject to appeal or review.

2.9(4)The decision of the appeal board shall be made and copies of the decision mailed to the Minister and to all parties to the appeal within 30 days after the conclusion of the hearing.

2.9(5)If the appeal board revokes or modifies the findings of the forest audit report, on receipt of the decision, the Minister shall amend the forest audit report to comply with the decision of the appeal board.

3The Regulation is amended by adding after Schedule A the attached Schedule B.

4This Regulation comes into force on October 1, 2009.

SCHEDULE B